$170,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
originally dated as of March 13, 1996
and amended and restated as of April 9, 1997
among
EXIDE ELECTRONICS GROUP, INC.,
The GUARANTORS Party Hereto,
The LENDERS Party Hereto,
The ISSUING LENDERS Party Hereto,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
and
NATIONSBANK, N.A.,
as Documentation Agent
ABN AMRO BANK, N.V.,
BANK OF AMERICA ILLINOIS,
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Co-Agents
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions........................... .........................1
SECTION 1.02. Accounting Terms and Determinations.... .......................21
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend............................................22
SECTION 2.02. Method of Borrowing..................... ......................25
SECTION 2.03. Notes..........................................................26
SECTION 2.04. Scheduled Termination of Commitments and Maturity of Loans.....27
SECTION 2.05. Interest Rates.................................................28
SECTION 2.06. Fees...........................................................29
SECTION 2.07. Optional Termination or Reduction of Commitments...............30
SECTION 2.08. Mandatory Incremental Repayments, and Reduction of Commitments.30
SECTION 2.09. Optional Prepayments...........................................32
SECTION 2.10. Method of Electing Interest Rates..............................32
SECTION 2.11. General Provisions as to Payments..............................34
SECTION 2.12. Funding Losses.................................................34
SECTION 2.13. Computation of Interest and Fees...............................35
SECTION 2.14. Regulation D Compensation......................................35
SECTION 2.15. Letters of Credit..............................................36
SECTION 2.16. Assignments and Assumptions on the Amendment Effective Date;
Non-Continuing Lenders.......................................39
ARTICLE 3
CONDITIONS
SECTION 3.01. Amendment Effective Date.......................................41
SECTION 3.02. Borrowings and Issuances of Letters of Credit..................43
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power..................................44
SECTION 4.02. Corporate and Governmental Authorization; No Contraventions....44
SECTION 4.03. Binding Effect.................................................44
SECTION 4.04. Financial Information..........................................45
SECTION 4.05. Litigation.....................................................46
SECTION 4.06. Compliance with ERISA..........................................46
SECTION 4.07. Environmental Matters..........................................47
SECTION 4.08. Taxes..........................................................47
SECTION 4.09. Subsidiaries...................................................47
SECTION 4.10. Regulatory Restrictions on Borrowing...........................48
SECTION 4.11. Full Disclosure................................................48
SECTION 4.12. Representations of Guarantors..................................48
SECTION 4.13. Deltec Acquisition Documents...................................49
ARTICLE 5
COVENANTS
SECTION 5.01. Information....................................................49
SECTION 5.02. Payment of Obligations.........................................53
SECTION 5.03. Maintenance of Property; Insurance.............................53
SECTION 5.04. Conduct of Business and Maintenance of Existence...............54
SECTION 5.05. Compliance with Laws...........................................54
SECTION 5.06. Inspection of Property, Books and Records; Annual Lender
Meeting......................................................54
SECTION 5.07. Mergers and Sales of Assets....................................55
SECTION 5.08. Use of Proceeds................................................55
SECTION 5.09. Negative Pledge................................................56
SECTION 5.10. Limitation on Debt.............................................57
SECTION 5.11. Restricted Payments............................................58
SECTION 5.12. Investments and Other Acquisitions.............................59
SECTION 5.13. Consolidated Capital Expenditures..............................60
SECTION 5.14. Sale-leaseback Transactions....................................61
SECTION 5.15. Transactions with Affiliates...................................61
SECTION 5.16. Hedging Facilities.............................................62
SECTION 5.17. Further Assurances.............................................62
SECTION 5.18. Minimum Consolidated Net Worth.................................63
SECTION 5.19. Fixed Charge Coverage Ratio....................................63
SECTION 5.20. Leverage Ratio.................................................64
SECTION 5.21. Amendments of Related Documents................................64
SECTION 5.22. Limitation on Restrictions Affecting Subsidiaries..............64
SECTION 5.23. Designated Senior Debt.........................................65
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default..............................................65
SECTION 6.02. Notice of Default..............................................67
SECTION 6.03. Cash Cover.....................................................68
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization..................................68
SECTION 7.02. Agents and Affiliates..........................................68
SECTION 7.03. Action by Agents...............................................69
SECTION 7.04. Consultation with Experts......................................69
SECTION 7.05. Liability of Agents............................................69
SECTION 7.06. Indemnification................................................69
SECTION 7.07. Credit Decision................................................69
SECTION 7.08. Successor Administrative Agent.................................70
SECTION 7.09. Agents' Fee....................................................70
SECTION 7.10. Co-Agents and Documentation Agent..............................70
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.......70
SECTION 8.02. Illegality.....................................................71
SECTION 8.03. Increased Cost and Reduced Return..............................72
SECTION 8.04. Taxes..........................................................73
SECTION 8.05. Base Rate Loans Substituted for Affected Euro-Dollar Loans.....75
SECTION 8.06. Substitution of Lender.........................................76
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty...................................................76
SECTION 9.02. Guaranty Unconditional.........................................76
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In Certain
Circumstances..............................................77
SECTION 9.04. Waiver by Each Guarantor.......................................77
SECTION 9.05. Subrogation and Contribution...................................78
SECTION 9.06. Stay of Acceleration...........................................78
SECTION 9.07. Limit of Liability.............................................78
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices.......................................................78
SECTION 10.02. No Waivers....................................................79
SECTION 10.03. Expenses; Indemnification.....................................79
SECTION 10.04. Sharing of Set-Offs...........................................79
SECTION 10.05. Amendments and Waivers; Release of Collateral.................80
SECTION 10.06. Successors and Assigns........................................81
SECTION 10.07. Collateral....................................................84
SECTION 10.08. Governing Law; Submission to Jurisdiction.....................84
SECTION 10.09. Counterparts; Integration.....................................84
SECTION 10.10. Waiver by Jury Trial..........................................84
PRICING SCHEDULE
SCHEDULE 1........Existing Letters of Credit
SCHEDULE 2........Assigning Lenders
SCHEDULE 3........Assuming Lenders
SCHEDULE 4........Certain Payments
SCHEDULE 4.05.....Material Litigation
SCHEDULE 5.10.....Outstanding Indebtedness
SCHEDULE 5.22.....Existing Restrictions Affecting Subsidiaries
EXHIBIT A.........Note
EXHIBIT B.........Security Agreement
EXHIBIT C.........Pledge Agreement
EXHIBIT D.........Opinion of Special North Carolina Counsel for the Obligors
EXHIBIT E-1.......Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, Special New York Counsel to
the Agents
EXHIBIT E-2.......Form of Opinion of Special Foreign Counsel to the Agents
EXHIBIT F.........Assignment and Assumption Agreement
EXHIBIT G.........Borrowing Base Certificate
EXHIBIT H.........Guarantor Addendum
AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT dated as of April 9, 1997 among EXIDE ELECTRONICS GROUP,
INC., the GUARANTORS party hereto, the LENDERS listed on the signature pages
hereof, the ISSUING LENDERS parties hereto, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as Administrative Agent and NATIONSBANK, N.A., as Documentation Agent.
Certain parties hereto have entered into a Credit Agreement dated as of
March 13, 1996 and wish, upon satisfaction of the conditions set forth in
Section 3.01 hereof, to amend and restate such Credit Agreement as set forth
herein (such amendment and restatement, the "Amendment"; and such Credit
Agreement, as in effect from time to time prior to the Amendment Effective Date,
as amended and restated by the Amendment as of the Amendment Effective Date and
as further amended from time to time thereafter, this "Agreement", provided that
in no event shall the Amendment be deemed to extinguish or constitute a novation
of the obligations under the Agreement). The parties hereto therefore agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Acquisition" shall mean any acquisition (other than the Deltec
Acquisition), whether in a single transaction or series of related transactions,
by the Borrower or any one or more Subsidiaries, or any combination thereof, of
(i) all or a substantial part of the assets, or a going business or division, of
any Person, whether through purchase of assets or securities, by merger or
otherwise, (ii) control of at least a majority of securities of an existing
corporation or other Person ordinarily (and apart from rights accruing under
special circumstances) having the right to vote in the election of directors or
(iii) control of a greater than 50% ownership interest in any existing
partnership, joint venture or other Person.
"Additional Debt Incurrence" means the incurrence of any Debt by the
Borrower or any of its Subsidiaries after the date hereof of the type referred
to in clauses (i), (ii) or (vii) of the definition of "Debt" herein, other than
Debt (i) under the Loan Documents, or the Subordinated Notes, (ii) which
constitutes a permitted refinancing of Debt hereunder, (iii) which is secured by
a Lien permitted by Section 5.09(c) or (iv) expressly permitted by Sections
5.10(f) or (g).
"Administrative Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New York
in its capacity as administrative agent for the Lenders hereunder, and its
successors in such capacity.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Lender.
"Affiliate" means, with respect to any Person, (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
Borrower (a "Controlling Person") or (ii) any Person (other than the Borrower or
a Subsidiary) which is controlled by or is under common control with a
Controlling Person. As used herein, the term "control" means possession,
directly or indirectly, of the power to vote 10% or more of any class of voting
securities of a Person or 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.
"Agents" means the Administrative Agent and the Documentation Agent,
and "Agent" means either one of the foregoing.
"Amendment" has the meaning set forth in the second introductory
paragraph hereof.
"Amendment Effective Date" means the date the Amendment shall become
effective in accordance with Section 3.01.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of its Base Rate Loans, its Domestic Lending Office and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Asset Sale" means any sale, lease or other disposition (including any
such transaction effected by way of merger or consolidation) by the Borrower or
any of its Subsidiaries of any asset, including without limitation any
sale-leaseback transaction, whether or not involving a capital lease, but
excluding (i) dispositions of inventory, cash, cash equivalents and other cash
management investments and obsolete, unused or unnecessary equipment and
undeveloped real estate, in each case in the ordinary course of business, (ii)
dispositions to the Borrower or a Subsidiary of the Borrower and (iii) Permitted
Receivables Dispositions.
"Assignee" has the meaning set forth in Section 10.06(c).
"Assigning Lender" means those banks listed on Schedule 2 hereof.
"Assuming Lender" means those banks listed on Schedule 3 hereof.
"Available Cash Flow" means, for any fiscal period, the sum of (i)
Consolidated Net Income for such period plus (ii) to the extent deducted in
determining Consolidated Net Income for such period, depreciation, amortization
and other similar noncash charges plus (iii) any increase (or minus any
decrease) during such period in deferred tax liabilities of the Borrower and its
Consolidated Subsidiaries, taken as a whole, minus (iv) any gain (or plus any
loss) from Asset Sales to the extent included (or deducted) in determining
Consolidated Net Income for such period.
"Available LC Amount" means at any time an amount equal to the lesser
of (i) $10,000,000, and (ii) the excess, if any, of the aggregate amount of the
Revolving Commitments (or if less, the Borrowing Base) over the aggregate
outstanding amount of Revolving Loans and Swing Loans at such time.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Loan" means (i) a Loan which bears interest by reference to
the Base Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election or the provisions of Article VIII or (ii) an overdue
amount which was a Base Rate Loan immediately before it became overdue.
"Base Rate Margin" means a rate per annum determined in accordance with
the Pricing Schedule.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means Exide Electronics Group, Inc., a Delaware corporation,
and its successors.
"Borrower's 1996 Form 10-K" means the Borrower's annual report on Form
10-K for the Fiscal Year ended September 30, 1996, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by the Lenders pursuant to Article 2 (or a Swing Loan
made solely by the Swing Lender), all of which (except for Base Rate Loans) have
the same initial Interest Period. A Borrowing is a "Base Rate Borrowing" if such
Loans are Base Rate Loans, a "Euro-Dollar Borrowing" if such Loans are
Euro-Dollar Loans and a "Swing Borrowing" if such Loan is a Swing Loan.
"Borrowing Base" means, at any date of determination, the sum of (i)
70% of Eligible Accounts Receivable and (ii) 50% of Eligible Inventories, in
each case determined pursuant to the most recent Borrowing Base Certificate
prepared in accordance with Section 5.01(i).
"Borrowing Base Certificate" means a certificate, duly executed by the
chief financial officer, treasurer, assistant treasurer or controller of the
Borrower, appropriately completed and substantially in the form of Exhibit G
hereto.
"Collateral" means collateral subject to the Collateral Documents.
"Collateral Documents" means, collectively, the Pledge Agreement, the
Security Agreement and any other agreement pursuant to which an Obligor or any
Subsidiary of an Obligor provides a Lien on its assets in favor of the
Administrative Agent for the benefit of the Lenders, and all supplementary
assignments, security agreements, pledge agreements, acknowledgments or other
documents delivered or to be delivered pursuant to the terms hereof (including
without limitation pursuant to Section 5.17) or of any other Security Document.
"Commitment" means a Term Commitment or a Revolving Commitment, and
"Commitments" means any combination of the foregoing.
"Commitment Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
"Commitment Schedule" means the Schedule attached hereto identified as
such.
"Consolidated Capital Expenditures" means, for any period, the
additions to property, plant and equipment and other capital expenditures of the
Borrower and its Consolidated Subsidiaries for such period, as the same are or
would be set forth in a consolidated statement of cash flows of the Borrower and
its Consolidated Subsidiaries for such period.
"Consolidated Debt" means at any date the Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated EBITDA" means, for any fiscal period, Consolidated Net
Income for such period plus, to the extent deducted in determining Consolidated
Net Income for such period, the aggregate amount of (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) the aggregate amount of depreciation,
amortization and other similar non-cash charges, (iv) solely with respect to
Consolidated Net Income determined for the Fiscal Quarter ended on or about
March 31, 1996 and the Fiscal Quarter ended on or about June 30, 1996, the
amount of one-time charges taken in connection with the Deltec Acquisition and
set forth as a separate line item referred to as "Acquisition and Restructuring
Expense" on the Borrower's consolidated statement of income for such periods
(but in no event greater than $11,621,000 for the Fiscal Quarter ended on or
about March 31, 1996 and $3,000,000 for the Fiscal Quarter ended on or about
June 30, 1996), (v) solely with respect to Consolidated Net Income determined
for the Fiscal Quarter ended on or about March 31, 1997, the amount of fees and
expenses initially capitalized in connection with the initial closing of this
Agreement in 1996, and expensed during the Fiscal Quarter ended on or about
March 31, 1997 (but in no event greater than $2,500,000, determined on an
after-tax basis) and (vi) minority interest expenses deducted in determining the
Borrower's direct or indirect share of net income of Consolidated Subsidiaries.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period excluding, for the Fiscal Quarter ended on or
about March 31, 1996, $4,100,000 of interest expense incurred pursuant to the
Deltec Purchase Agreement.
"Consolidated Net Income" means, for any fiscal period, the net income
of the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis for such period, exclusive of the effect of any extraordinary or other
non-recurring gain (but not loss) and before the effect of any dividends paid
during such period on the Borrower's capital stock.
"Consolidated Net Working Investment" means at any date (i)
consolidated current assets of the Borrower and its Consolidated Subsidiaries
(exclusive of cash and cash equivalents) minus (ii) the sum (without
duplication) of (x) the consolidated current liabilities of the Borrower and its
Consolidated Subsidiaries and (y) the current liabilities of any Person (other
than the Borrower or any of its Consolidated Subsidiaries) which are Guaranteed
by the Borrower or a Consolidated Subsidiary, in each case exclusive of Debt,
all determined as of such date.
"Consolidated Net Worth" means at any date the sum of the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries
determined as of such date (other than any amount attributable to stock which is
required to be redeemed or is redeemable at the option of the holder, if certain
events or conditions occur or exist or otherwise).
"Consolidated Rental Expense" means, for any period, the aggregate
rental expense of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all non-contingent
obligations (and, for purposes of Section 5.09 and the definitions of Material
Debt and Material Financial Obligations, all contingent obligations) of such
Person to reimburse any bank or other Person in respect of amounts paid under a
letter of credit or similar instrument, (vi) all Debt secured by a Lien on any
asset of such Person, whether or not such Debt is otherwise an obligation of
such Person, (vii) any Receivables Financing and (viii) all Debt of others
Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Deltec" means Deltec Power Systems, Inc., a Wisconsin corporation, and
its successors.
"Deltec Acquisition" means the acquisition by the Borrower of Deltec
and all other transactions contemplated by the Deltec Purchase Agreement to be
consummated on or before the Original Closing Date.
"Deltec Acquisition Documents" means the Deltec Purchase Agreement and
all agreements, documents and instruments executed and delivered pursuant
thereto or in connection with the foregoing, each as amended from time to time
in accordance with the terms hereof and thereof.
"Deltec Purchase Agreement" means the Stock Purchase Agreement dated as
of November 16, 1995 among the Borrower, Deltec, Fiskars Holdings, Inc. and
Fiskars Holdings, Inc., including the exhibits and schedules thereto, as amended
by Amendment No. 1 thereto dated as of February 9, 1996 and as the same may
further be amended in accordance with the terms hereof and thereof.
"Deltec Seller Stock" means the 50 shares of Class A Preferred Stock
held by Fiskars Oy Ab, issued in connection with the closing of the Deltec
Acquisition and redeemable on January 8, 1997.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Documentation Agent" means NationsBank, N.A. in its capacity as
documentation agent for the Lenders hereunder, and its successors in such
capacity.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"EEIC" means Exide Electronics International Corp., a Delaware
corporation.
"Eligible Accounts Receivable" means, at any date of determination
thereof, the aggregate amount of "Accounts Receivable" of the Borrower and its
Consolidated Subsidiaries, as such amount is shown on the consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries on such date on a basis
consistent with that used in the preparation of the financial statements
referred to in Section 4.04(a) (other than any such amounts that are subject to
a Lien pursuant to a Permitted Receivables Financing), all net of reserves and
any "contra" accounts taken or maintained in respect thereof, or such net amount
that would be so shown on such balance sheet on such date if it were so prepared
on such date.
"Eligible Inventories" means, at any date of determination thereof, the
value (determined on a basis consistent with that used on the date hereof) at
such date of all inventory of the Borrower and its Consolidated Subsidiaries, to
the extent comprised of readily marketable materials of a type manufactured,
consumed or held for resale, as such amount is shown on the consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries on such date on a basis
consistent with that used in the preparation of the financial statements
referred to in Section 4.04(a), other than any such amounts that are subject to
a Lien (other than Liens under the Loan Documents), all net of reserves and any
"contra" accounts taken or maintained in respect thereof, or such net amount
that would be so shown on such balance sheet on such date if it were so prepared
on such date.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means (i) a Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election or (ii) an overdue amount which was a Euro-Dollar Loan
immediately before it became overdue.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.05(b) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Cash Flow" means, for any period the excess (if any) of:
(A) the sum of (i) Available Cash Flow for such
fiscal period, and (ii) any decrease in Consolidated Net
Working Investment between the beginning and the end of such
period;
(B) the sum of (i) Consolidated Capital Expenditures
for such period, (ii) any increase in Consolidated Net Working
Investment between the beginning and the end of such period,
(iii) cash dividends paid on capital stock during such period,
(iv) mandatory reductions of long-term Debt of the Borrower
and its Consolidated Subsidiaries during such period (adjusted
to eliminate the effect of prepayments on account of Excess
Cash Flow for a prior period) and (v) optional prepayments of
Term Loans during such period pursuant to Section 2.09.
"Existing Credit Agreement" means the Credit Agreement dated as of
September 30, 1994 among the Borrower, as guarantor, the "Borrowers" referred to
therein, First Union National Bank of North Carolina, as co-arranger and
administrative agent, BA Securities, Inc., as co-arranger, Bank of America
Illinois, as documentation agent and the lenders referred to therein, as
amended.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent.
"Fiscal Quarter" means a fiscal quarter in a Fiscal Year of the
Borrower. "First Fiscal Quarter 1996", "Second Fiscal Quarter 1996" and "Third
Fiscal Quarter 1996", e.g., mean, respectively, the fiscal quarters of the
Borrower ending most nearly on December 31, 1995, March 31, 1996 and June 30,
1996.
"Fiscal Year" means a fiscal year of the Borrower, and "Fiscal Year"
for any particular year means the fiscal year of the Borrower ended or ending
during the specified calendar year. "Fiscal Year 1996", e.g., means the fiscal
year of the Borrower ending approximately September 30, 1996.
"Fixed Charge Coverage Ratio" means, at any date, the ratio of (i) the
sum of (A) Consolidated EBITDA plus (B) Consolidated Rental Expense minus (C)
Consolidated Capital Expenditures, in each case for the four consecutive Fiscal
Quarters of the Borrower and its Consolidated Subsidiaries ending on such date
(or, in the case of any Fiscal Quarter ending prior to March 31, 1997, for the
period commencing on April 1, 1996 and ending on the last day of such Fiscal
Quarter) to (ii) the sum of (x) Consolidated Interest Expense for such period
plus (y) Consolidated Rental Expense for such period plus (z) the aggregate
amount of dividends or distributions paid by the Borrower on or with respect to
its capital stock (or by any Subsidiary on or with respect to capital stock
owned by a Person other than the Borrower or another Subsidiary) during such
period, but excluding in any event the redemption of the Deltec Seller Stock in
accordance with the terms thereof.
"Group of Loans" or "Group" means at any time a group of Loans
consisting of (i) all Base Rate Loans at such time or (ii) all Euro-Dollar Loans
having the same Interest Period at such time; provided that, if Loans of any
particular Lender are converted to or made as Base Rate Loans pursuant to
Article 8, such Loans shall be included in the same Group or Groups of Loans
from time to time as they would have been in if they had not been so converted
or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the holder of such Debt or other obligation of the payment thereof
or to protect such holder against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Guarantor" means each Person listed on the signature pages hereof as a
"Guarantor", together with any Person who shall become a Guarantor in accordance
with Section 5.17(d), and their respective successors.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"Immaterial Subsidiary" means a Subsidiary of the Borrower, other than
any Obligor, that at the relevant time of determination (i) does not, together
with any of its Subsidiaries, have assets (including capital stock) with an
aggregate fair market value exceeding $1,000,000 and (ii) is not performing any
activity significant to the business of the Borrower and its Subsidiaries, taken
as a whole, if the Borrower shall have notified the Administrative Agent prior
to the date hereof or any relevant event that such Subsidiary is an "Immaterial
Subsidiary". As of the Amendment Effective Date, Lortec Power Systems, Inc.,
International Power Machines de Mexico, S.A. de C.V., and Exide Electronics,
B.V. are Immaterial Subsidiaries.
"Indemnitee" has the meaning set forth in Section 10.03(b).
"Interest Period" means, with respect to each Euro-Dollar Loan, a
period commencing on the date of Borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable Notice; provided that:
(a) any Interest Period which would otherwise end on
a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall,
subject to clause (c) below, end on the last Euro-Dollar
Business Day of a calendar month; and
(c) if any Interest Period includes a date on which a
payment of principal of any Loan is required to be made under
Section 2.04 or Section 2.08 but does not end on such date,
then (i) the principal amount (if any) of each Euro-Dollar
Loan required to be repaid on such date shall have an Interest
Period ending on such date and (ii) the remainder (if any) of
each such Euro-Dollar Loan shall have an Interest Period
determined as set forth above.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"International Subsidiary" means any Subsidiary of the Borrower
organized under the laws of a jurisdiction, and conducting substantially all of
its operations outside of, the United States of America.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, Guarantee, time deposit or otherwise
(but not including any demand deposit).
"Issuing Lender" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Bank
of America Illinois, and First Union National Bank of North Carolina and any
other Lender that may agree to issue letters of credit hereunder, in each case
as issuer of a letter of credit hereunder.
"Lender" means each bank listed on the signature pages hereof, each
Assignee which becomes a Lender pursuant to Section 10.06(c), and their
respective successors, and shall include, as the context may require, the
Issuing Lender in such capacity.
"Letter of Credit" means a letter of credit to be issued hereunder by
an Issuing Lender.
"Letter of Credit Fee Rate" means a rate per annum determined in
accordance with the Pricing Schedule.
"Letter of Credit Liabilities" means, for any Lender and at any time,
the sum of (i) the amounts then owing to such Lender (including in its capacity
as an Issuing Lender) by the Borrower to reimburse it in respect of amounts
drawn under Letters of Credit and (ii) such Lender's Revolving Percentage of the
aggregate amount then available for drawing under all Letters of Credit.
"Leverage Ratio" means, for any day, the ratio of (i) Consolidated Debt
on such day to (ii) Consolidated EBITDA for the four consecutive Fiscal Quarters
ending on or most recently prior to such day; provided that in determining the
Leverage Ratio as of any day prior to the end of the Fiscal Quarter ending
approximately on March 31, 1997, Consolidated EBITDA for the Fiscal Quarters
ending September 30, 1995, December 31, 1995 and March 31, 1996 shall be deemed
to be $14,683,000, $15,223,000 and $12,937,000, respectively.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Swing Loan, and
"Loans" means Base Rate Loans, Swing Loans or Euro-Dollar Loans or any
combination of the foregoing.
"Loan Documents" means this Agreement, the Notes and the Collateral
Documents.
"London Interbank Offered Rate" has the meaning set forth in Section
2.05(b).
"Major Casualty Proceeds" means (i) the aggregate insurance proceeds
received in connection with one or more related events by the Borrower or any of
its Subsidiaries under any insurance policy maintained by the Borrower or any of
its Subsidiaries covering losses with respect to tangible real or personal
property or improvements or losses from business interruption or (ii) any award
or other compensation with respect to any condemnation of property (or any
transfer or disposition of property in lieu of condemnation) received by the
Borrower or any of its Subsidiaries, if the amount of such aggregate proceeds or
award or other compensation exceeds $1,000,000.
"Material Debt" means Debt (other than the Notes) of the Borrower
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal or face amount exceeding
$5,000,000.
"Material Financial Obligations" means a principal or face amount of
Debt and/or payment or collateralization obligations in respect of Derivatives
Obligations of the Borrower and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, exceeding in the aggregate
$5,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"Maturity Date" means April 9, 2002, or, if such day is not a
Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month, in which case the
Maturity Date shall be the next preceding Euro-Dollar Business Day.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Net Cash Proceeds" means, with respect to any Reduction Event, an
amount equal to the cash proceeds received by the Borrower or any or its
Subsidiaries from or in respect of such Reduction Event (including any cash
proceeds received as income or other proceeds of any noncash proceeds of any
Asset Sale) or, in the case of any Permitted Receivables Financing, the
Receivables Investment Amount with respect thereto (including any increases in
the initial amount thereof from time to time, but not with respect to
reinvestments out of collections or proceeds by the purchasers or lenders
thereunder that do not result in an increase in the Receivables Investment
Amount with respect thereto), (i) less any expenses reasonably incurred by such
Person in respect of such Reduction Event and (ii) if such Reduction Event is an
Asset Sale, less (x) the amount of any Debt secured by a Lien on any asset
disposed of in such Asset Sale and discharged from the proceeds thereof and (y)
any taxes actually paid or to be payable by such Person (as estimated by a
senior financial or accounting officer of the Borrower, giving effect to the
overall tax position of the Borrower) in respect of such Asset Sale.
"Notes" means promissory notes of the Borrower, substantially in the
form of either Exhibit A to this Agreement as in effect immediately before the
Amendment Effective Date or Exhibit A to this Agreement as in effect immediately
after the Amendment Effective Date, evidencing the obligation of the Borrower to
repay the Loans, and the "Note" means any one of such promissory notes issued
under this Agreement as in effect immediately before or after the Amendment
Effective Date.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Notice of Interest Rate Election" has the meaning set forth in Section
2.10.
"Notice of Issuance" has the meaning set forth in Section 2.15(b).
"Obligor" means the Borrower and each Guarantor.
"Original Closing Date" means March 13, 1996, the date of the initial
Borrowings hereunder.
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 10.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Receivables Disposition" means any transfer (by way of sale,
pledge or otherwise) by the Borrower or any Subsidiary to any other Person of
accounts receivable and other rights to payment (whether constituting accounts,
chattel paper, instruments, general intangibles or otherwise and including the
right to payment of interest or finance charges) and related contract and other
rights and property (including all general intangibles, collections and other
proceeds relating thereto, all security therefor (and the property subject
thereto), all guarantees and other agreements or arrangements of whatsoever
character from time to time supporting such right to payment, and all other
rights, title and interest in goods relating to a sale which gave rise to such
right of payment) in connection with a Permitted Receivables Financing.
"Permitted Receivables Financing" means any Receivables Financing by
the Borrower or any of its Subsidiaries which has been approved by the Required
Lenders (which Receivables Financing shall provide for recourse against the
transferor of such receivables only for limited indemnities and breach of
warranty concerning the eligibility of the receivables transferred, and no such
recourse for uncollectability of such receivables solely for the failure of the
related obligors to pay such receivables), which such approval for any such
transaction shall be considered in good faith. No Receivables Financing or other
transaction involving the sale, pledge or other disposition by the Borrower or
any of its Subsidiaries of any account receivable shall constitute a "Permitted
Receivables Financing" unless the Required Lenders (determined, for this
purpose, without the participation of any Lender acting as a participant,
sponsor or credit support provider in any such Permitted Receivable Financing)
have approved in writing (which such approval shall be considered in good faith)
the final form of all documentation relating to such transaction (including,
without limitation, the face amount of the accounts receivable subject thereto
and the economic terms) and shall have agreed to such amendments to the Loan
Documents, including, without limitation, provisions for an "Event of Default"
or similar event hereunder in the event of a wind down or early amortization of
such financing, and all amendments and waivers relating to such documentation.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pledge Agreements" means each Pledge Agreement, the Share Mortgage or
similar document dated as of the Original Closing Date between each Pledgor and
the Administrative Agent, each substantially in the form of Exhibit C, in each
case with such modifications and additions as shall be necessary to comply with
applicable law and in each case as amended from time to time.
"Pledgors" means the Borrower, International Power Machines
Corporation, EEIC, Exide Electronics USA Holdings Corp., Exide Electronics
Corporation, Deltec Electronics Corp. and Deltec.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by the
Administrative Agent in New York City from time to time as its Prime Rate.
"Quarterly Date" means the last Euro-Dollar Business Day of each March,
June, September and December.
"Receivables Financing" means any receivables securitization program or
other type of accounts receivable financing transaction by the Borrower or any
of its Subsidiaries.
"Receivables Investment Amount" means at any time, with respect to any
Permitted Receivables Financing, the financing amount with respect thereto at
such time, equal to the amount advanced by the purchasers or lenders with
respect thereto for the purchase or financing of assets transferred pursuant
thereto, net of repayments or recoveries through liquidation of such assets.
"Reduction Amount" means, (i) in respect of an Asset Sale, 100% of the
Net Cash Proceeds thereof in excess of $1,000,000 in any Fiscal Year, (ii) in
respect of an Additional Debt Incurrence or receipt of Major Casualty Proceeds,
100% of the Net Cash Proceeds thereof, (iii) in respect of Excess Cash Flow, 50%
of the amount thereof, and (iv) in respect of the issuance of equity securities
not constituting Debt, 50% of the Net Cash Proceeds thereof in excess of
$200,000 in any Fiscal Year.
"Reduction Event" means (i) any Asset Sale, (ii) any Additional Debt
Incurrence, (iii) the issuance of any equity securities by the Borrower or any
of its Subsidiaries (other than equity securities issued to the Borrower or any
of its Subsidiaries) or (iv) receipt of Major Casualty Proceeds. The description
of any transaction as falling within the above definition does not affect any
limitation on such transaction imposed by Article 5 of this Agreement.
"Reference Lenders" means the principal London offices of Bank of
America NT & SA, First Union National Bank of North Carolina, NationsBank, N.A.
and ▇▇▇▇▇▇ Guaranty Trust Company of New York, and "Reference Lender" means any
one of such Reference Lenders.
"Refunded Swing Loans" has the meaning set forth in Section 2.01(d).
"Refunding Date" has the meaning set forth in Section 2.01(e).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders having, in the aggregate,
at least 51% of the sum of (x) the Revolving Commitments at such time or, if the
Revolving Commitments shall have been terminated, the sum of the aggregate
outstanding principal amount of the Revolving Loans and Letter of Credit
Liabilities plus (y) the aggregate outstanding principal amount of the Term
Loans at such time or, if no Term Loans are then outstanding, the Term
Commitments at such time.
"Restricted Investment" means any Investment by the Borrower and its
Subsidiaries in any Person, other than (i) Investments in Guarantors, (ii)
Temporary Cash Investments, (iii) Investments by Deltec, Borrower, EEIC and
Exide Electronic Corporation in FPS Power Systems Oy Ab with a book value at any
time in the aggregate not to exceed $5,000,000 collectively, (v) Guarantees
permitted under clause (i) of Section 5.10(h) and (v) Investments in
Subsidiaries other than Guarantors and in the Japanese Joint Venture, each of
which Investments under this clause (v) is in existence on the Original Closing
Date, and in the respective amounts thereof on the Original Closing Date, and
renewals and extensions by the obligor with respect to any of the foregoing,
provided that any such renewal or extension does not increase the amount of such
Investment.
"Restricted Payment" means (i) any dividend or other distribution on
any shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
capital stock or (b) any option, warrant or other right to acquire shares of the
Borrower's capital stock and (iii) any payment of principal on, or on account
of, the purchase, redemption, retirement or other acquisition, in each case
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment of, the Subordinated Notes and any other Debt (except for repayments in
the ordinary course of business of Debt of International Subsidiaries permitted
under Section 5.10(g) hereof).
"Revolving Commitment" means, (i) with respect to each Lender listed on
the signature pages hereof, the amount set forth opposite the name of such
Lender under the heading "Revolving Commitment" on the Commitment Schedule, and
(ii) with respect to any Assignee, the Revolving Commitment assigned to such
Assignee pursuant to Section 10.06(c), in each case as such amount may be
reduced from time to time pursuant to Section 2.07 or 2.08.
"Revolving Credit Available Amount" means with respect to each Lender,
at any time, the lesser of (i) the amount of such Lender's Revolving Commitment
at such time and (ii) the Borrowing Base at such time multiplied by such
Lender's Revolving Percentage.
"Revolving Credit Period" means the period from and including the
Original Closing Date to but not including the Maturity Date.
"Revolving Loan" means a loan made by a Lender pursuant to Section
2.01(b).
"Revolving Percentage" means, with respect to each Lender, the
percentage that such Lender's Revolving Commitment constitutes of the aggregate
amount of the Revolving Commitments.
"S&P" means Standard & Poor's Ratings Services.
"Sale-Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Borrower or any Subsidiary of any property
that, or of any property similar to and used for substantially the same purposes
as any other property that, has been or is to be sold, assigned, transferred or
otherwise disposed of by the Borrower or any of its Subsidiaries to such Person
with the intention of entering into such a lease.
"Security Agreement" means the security agreement substantially in the
form of Exhibit B hereto between each Obligor party thereto and the
Administrative Agent entered into as of the Original Closing Date and any
security agreement entered into pursuant hereto after the Original Closing Date,
in each case as amended from time to time.
"Series G Preferred Stock" means the 1,000,000 shares of Series G
Convertible Preferred Stock held by Fiskars Oy Ab, issued in connection with the
closing of the Deltec Acquisition and convertible at any time at the option of
the holder, as in effect on the Original Closing Date and as amended from time
to time in accordance with the terms hereof and thereof.
"Subordinated Notes" means, at any time, the subordinated notes, in an
aggregate principal amount of not less than $75,000,000 and not more than
$150,000,000, issued pursuant to the Subordinated Note Agreement on or prior to
the Original Closing Date, having a scheduled maturity not earlier than, and not
requiring any payment of principal prior to, the date that is 10 years from the
Original Closing Date.
"Subordinated Note Agreement" means the Subordinated Note Indenture
dated as of March 13, 1996 between the Borrower, the guarantors referred to
therein, and the purchasers referred to therein, with regard to the issuance of
at least $75,000,000 in aggregate principal amount of subordinated notes of the
Borrower, substantially in the form delivered to the Lenders prior to the
Original Closing Date, and as amended from time to time in accordance with the
terms thereof and hereof.
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Swing Lender" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, in its
capacity as the Swing Lender under the swing loan facility described in Section
2.01(c), and its successors in such capacity.
"Swing Loan" means a Loan made by the Swing Lender pursuant to Section
2.01(c).
"Swing Loan Commitment" means $5,000,000 or, if less, the aggregate
amount of the Revolving Commitments.
"Swing Loan Refund Amount" has the meaning set forth in Section
2.01(d).
"Temporary Cash Investment" means any Investment in (i) securities
issued or unconditionally guaranteed by the United States of America or any
agency or instrumentality thereof, backed by the full faith and credit of the
United States of America and maturing within one year from the date of
acquisition, (ii) securities issued by any state of the United States of America
or any political subdivision or public instrumentality thereof, maturing within
one year from the date of acquisition and, at the time of acquisition, having a
rating of at least A- by S&P or the equivalent by Moody's, (iii) commercial
paper issued by any Person organized under the laws of the United States of
America, maturing no more than one year from the date of acquisition and, at the
time of acquisition, having a rating of at least A-1 or the equivalent thereof
by S&P or at least P-1 or the equivalent thereof by Moody's, (iv) time deposits
and certificates of deposit that are insured by the Federal Deposit Insurance
Corporation (the "FDIC") or any successor instrumentality of the government of
the United States of America up to the applicable limit on insurance granted by
the FDIC or such other instrumentality with respect to such instruments (it
being understood that the amount invested in such instrument may not exceed the
limit on such insurance), maturing within one year from the date of issuance and
issued by a bank or trust company organized under the laws of the United States
of America or any state thereof and having combined capital and surplus of at
least $500,000,000, (v) repurchase obligations with a term not exceeding seven
(7) days with respect to underlying securities of the types described in clause
(i) above entered into with any bank or trust company meeting the qualifications
specified in clause (iv) above and (vi) money market funds substantially all of
whose assets are comprised of securities of the types described in clauses (i)
through (v) above.
"Term Commitment" means, with respect to each "Lender" party to this
Agreement on the Original Closing Date, the amount set forth opposite the name
of such Lender under the heading "Term Commitment" on the signature pages of
this Agreement as in effect on the Original Closing Date.
"Term Loan" means a loan made by a Lender pursuant to Section 2.01(a).
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Lenders; provided that, if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any covenant in Article 5 to eliminate the
effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Lenders wish to amend Article 5 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend.
(a) Term Loans. On the Original Closing Date, each Person that was
initially a Lender under the Agreement on the Original Closing Date made a
single loan to the Borrower on the Original Closing Date pursuant to this
Section 2.01(a) in an amount not to exceed such Person's Term Commitment. Loans
made pursuant to this Section 2.01(a) are not revolving in nature and amounts of
such loans repaid or prepaid may not be reborrowed.
(b) Revolving Loans. Each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make loans to the Borrower pursuant
to this Section 2.01(b) from time to time during the Revolving Credit Period in
amounts such that the aggregate principal amount of Revolving Loans by such
Lender at any one time outstanding shall not exceed the amount by which (i) such
Lender's Revolving Credit Available Amount exceeds (ii) an amount equal to such
Lender's Revolving Percentage of the sum at such time of (x) aggregate amount of
all Letter of Credit Liabilities plus (y) the aggregate outstanding principal
amount of Swing Loans. Each Borrowing under this Section 2.01(b) shall be in an
aggregate principal amount of $5,000,000 (or $1,000,000 in the case of Base Rate
Loans under this Section 2.01(b)) or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount of the unused
Commitments) and shall be made from the several Lenders ratably in proportion to
their respective Revolving Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay, or to the extent permitted by
Section 2.09, prepay Revolving Loans and reborrow at any time during the
Revolving Credit Period under this Section.
(c) Swing Loans. During the Revolving Credit Period, the Swing Lender
agrees, on the terms and conditions set forth in this Agreement, to make loans
to the Borrower pursuant to this Section 2.01(c) from time to time in amounts
such that (i) the aggregate principal amount of Swing Loans does not at any time
exceed the Swing Loan Commitment and (ii) the sum of the aggregate outstanding
principal amount of the Revolving Loans and Swing Loans plus the aggregate
amount of all Letter of Credit Liabilities at such time does not exceed the
aggregate Revolving Commitments or, if less, the Borrowing Base. Each Borrowing
under this Section 2.01(c) shall be in an aggregate principal amount of $250,000
or any larger multiple thereof (except that any such Borrowing may be in the
aggregate available amount of Swing Loans determined in accordance with the
immediately preceding sentence). Within the foregoing limits, the Borrower may
borrow under this Section 2.01(c), repay or, to the extent permitted by Section
2.09, prepay Swing Loans and reborrow at any time prior to the Maturity Date
under this Section 2.01(c).
(d) Conversion of Swing Loans to Revolving Loans. The Swing Lender, at
any time and from time to time in its sole and absolute discretion may, on
behalf of the Borrower (which hereby irrevocably directs the Swing Lender to act
on its behalf), on notice given by the Swing Lender no later than 11:00 A.M.,
New York City time, on the proposed date of Borrowing for the Revolving Loans
referred to below, request each Lender to make, and each Lender hereby agrees to
make, a Revolving Loan, in an amount (with respect to each Lender, its "Swing
Loan Refund Amount") equal to such Lender's Revolving Percentage of the
aggregate principal amount of the Swing Loans (the "Refunded Swing Loans")
outstanding on the date of such notice, to repay the Swing Lender. Unless any of
the events described in clause (g) or (h) of Section 6.01 with respect to the
Borrower shall have occurred and be continuing (in which case the procedures of
Section 2.01(e) shall apply), each Lender shall make such Revolving Loan
available to the Administrative Agent at its address specified in or pursuant to
Section 10.01 in immediately available funds, not later than 12:00 Noon (New
York City time), on the date of such notice. Each such Revolving Loan shall
initially be made as a Base Rate Loan. The Administrative Agent shall pay the
proceeds of such Revolving Loans to the Swing Lender, which shall immediately
apply such proceeds to repay Refunded Swing Loans. Effective on the day such
Revolving Loans are made, the portion of the Swing Loans so paid shall no longer
be outstanding as Swing Loans, shall no longer be due as Swing Loans under the
Note held by the Swing Lender, and shall be due as Revolving Loans under the
respective Notes issued to the Lenders (including the Swing Lender) in
accordance with their respective Revolving Percentages (calculated as set forth
above). The Borrower authorizes the Swing Lender to charge the Borrower's
accounts with the Administrative Agent (up to the amount available in each such
account) in order to immediately pay the amount of such Refunded Swing Loans to
the extent amounts received from the Lenders are not sufficient to repay in full
such Refunded Swing Loans.
(e) Purchase of Participations in Swing Loans. If prior to the time
Revolving Loans would have otherwise been made pursuant to Section 2.01(d), one
of the events described in clause (g) or (h) of Section 6.01 with respect to the
Borrower shall have occurred and be continuing, each Lender shall, on the date
such Revolving Loans were to have been made pursuant to the notice referred to
in Section 2.01(d) (the "Refunding Date"), purchase an undivided participating
interest in the Swing Loans in an amount equal to such Lender's Swing Loan
Refund Amount. On the Refunding Date, each Lender shall transfer to the Swing
Lender, in immediately available funds, such Lender's Swing Loan Refund Amount,
and upon receipt thereof the Swing Lender shall deliver to such Lender a Swing
Loan participation certificate dated the date of the Swing Lender's receipt of
such funds and in the Swing Loan Refund Amount of such Lender.
(f) Payments on Participated Swing Loans. Whenever, at any time after
the Swing Lender has received from any Lender such Lender's Swing Loan Refund
Amount pursuant to Section 2.01(e), the Swing Lender receives any payment on
account of the Swing Loans in which the Lenders have purchased participations
pursuant to Section 2.01(e), the Swing Lender will promptly distribute to each
such Lender its ratable share (determined on the basis of the Swing Loan Refund
Amounts of all of the Lenders) of such payment (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Swing Lender is required to
be returned, such Lender will return to the Swing Lender any portion thereof
previously distributed to it by the Swing Lender.
(g) Obligations to Refund or Purchase Participations in Swing Loans
Absolute. Each Lender's obligation to transfer the amount of a Revolving Loan to
the Swing Lender as provided in Section 2.01(d) or to purchase a participating
interest pursuant to Section 2.01(e) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such Lender,
the Borrower or any other Person may have against the Swing Lender or any other
Person, (ii) the occurrence or continuance of a Default or an Event of Default
or the termination or reduction of the Commitments, (iii) any adverse change in
the condition (financial or otherwise) of the Borrower or any other Person, (iv)
any breach of this Agreement by the Borrower, any other Lender or any other
Person or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
SECTION 2.02. Method of Borrowing. (a) The Borrower shall give the
Administrative Agent notice (a "Notice of Borrowing") not later than 11:00 A.M.
(New York City time) on (x) the date of each Base Rate Borrowing and (y) the
third Euro-Dollar Business Day before each Euro-Dollar Borrowing, and not later
than 12:00 Noon (New York City time) on the date of each Borrowing of a Swing
Loan, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or
Swing Borrowing, or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are
to bear interest initially at the Base Rate or a Euro-Dollar
Rate, provided that all Swing Loans and, initially, Revolving
Loans made pursuant to Section 2.01(d) shall bear interest
based on the Base Rate;
(iv) whether the Loans comprising such Borrowing are
to be Term Loans, Revolving Loans or Swing Loans, and duration
(v) in the case of a Euro-Dollar Borrowing, the
of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
No more than four Swing Loans may be borrowed during any calendar week.
(b) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Lender of the contents thereof and of such Lender's
ratable share of such Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(c) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing (or 1:00 P.M. (New York City time) on the date of each Swing
Borrowing), each Lender (or, in the case of a Swing Loan, the Swing Lender)
shall make available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Administrative Agent at its
address referred to in Section 10.01. Unless the Administrative Agent determines
that any applicable condition specified in Article 3 has not been satisfied, the
Administrative Agent will make the funds so received from the Lenders available
promptly on the date of such Borrowing to the Borrower at the Administrative
Agent's aforesaid address.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (c) of this Section and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.05 and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.03. Notes. (a) The Loans of each Lender shall be evidenced
by a single Note payable to the order of such Lender for the account of its
Applicable Lending Office, in an amount equal to the aggregate unpaid principal
amount of such Lender's Loans.
(b) Each Lender may, by notice to the Borrower and the Administrative
Agent, request that its Loans of a particular type, or its Term Loans, on the
one hand, and its Revolving Loans and Swing Loans, on the other, be evidenced by
a separate Note in an amount equal to the aggregate unpaid principal amount of
such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to the
"Note" of such Lender shall be deemed to refer to and include any or all of such
Notes, as the context may require.
(c) Upon receipt of each Lender's Note pursuant to Section 3.01(b),
the Administrative Agent shall forward such Note to such Lender. Each Lender
shall record the date, amount and type of each Loan made by it and the date and
amount of each payment of principal made by the Borrower with respect thereto,
and may, if such Lender so elects in connection with any transfer or enforcement
of its Note, endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding; provided that the failure of any Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Lender is hereby irrevocably authorized by
the Borrower so to endorse its Note and to attach to and make a part of its Note
a continuation of any such schedule as and when required.
SECTION 2.04. Scheduled Termination of Commitments and Maturity of
Loans. (a) The Term Commitments terminated at the close of business on the
Original Closing Date. The Revolving Commitments and the Swing Commitment shall
terminate on the Maturity Date, and any Loans then outstanding (together with
accrued interest thereon) shall be due and payable on such date.
(b) On the Amendment Effective Date, the aggregate outstanding
principal amount of Term Loans is equal to $45,000,000. After the Amendment
Effective Date, the Borrower shall be obligated to repay, and there shall become
due and payable on each Quarterly Date occurring during the periods set forth
below (or on the Maturity Date) an aggregate principal amount of the Term Loans
equal to the amount set forth below opposite the period in which such Quarterly
Date occurs; provided that in any event the outstanding Term Loans shall be
repaid in full not later than the Maturity Date:
Period During Which
Quarterly Date Occurs Amount
--------------------- --------
June 1997 through March 1999 1,750,000
June 1999 through December 2001 2,000,000
March 2002 0
Maturity Date 9,000,000
(c) Each repayment pursuant to this Section 2.04 shall be made together
with accrued interest to the date of payment, and shall be applied ratably to
payment of the Term Loans of the several Lenders in proportion to the aggregate
outstanding principal amounts of their Term Loans. Within the foregoing limits
of this Section 2.04, each required payment or prepayment shall be made with
respect to such outstanding Group or Groups of Loans as the Borrower may
designate to the Administrative Agent not less than three Euro-Dollar Business
Days prior to the date required for such payment or prepayment or, failing such
designation by the Borrower, as the Administrative Agent may specify by notice
to the Borrower and the Lenders.
SECTION 2.05. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the sum of
(x) the Base Rate Margin plus (y) the Base Rate for such day. Such interest
shall be payable in arrears on the last Domestic Business Day of each month
while such Base Rate Loan is outstanding, beginning with the month in which such
Base Rate Loan is made and, with respect to the principal amount of any Base
Rate Loan converted to a Euro-Dollar Loan, on each date a Base Rate Loan is so
converted. Any overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 2% plus the rate otherwise applicable to Base Rate Loans for such
day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of (x) the Euro-Dollar Margin for
such day plus (y) the London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at intervals
of three months after the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Reference Lenders in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Reference Lender to which such Interest Period is
to apply and for a period of time comparable to such Interest Period.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Loan at the time
it became overdue and (ii) the sum of 2% plus the Euro-Dollar Margin for such
day plus the average (rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum at which one day (or, if such amount due
remains unpaid more than three Euro-Dollar Business Days, then for such other
period of time not longer than three months as the Administrative Agent may
select) deposits in dollars in an amount approximately equal to such overdue
payment due to each of the Reference Lenders are offered to such Reference
Lender in the London interbank market for the applicable period determined as
provided above (or, if the circumstances described in clause (a) or (b) of
Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus the
rate applicable to Base Rate Loans for such day).
(d) Each Swing Loan shall bear interest on the outstanding principal
amount thereof (and, in the case of any amount of overdue Swing Loan, overdue
interest thereon) at a rate for each day equal to the rate that would be
applicable to a Revolving Loan that is a Base Rate Loan on such day.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Lenders of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(f) Each Reference Lender agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Lender does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Lender or Lenders or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.06. Fees.
(a) During the Revolving Credit Period, the Borrower shall pay to the
Administrative Agent for the account of each Lender a commitment fee at the
Commitment Fee Rate (determined daily in accordance with the Pricing Schedule)
on the daily amount by which such Lender's Revolving Commitment exceeds the sum
of (i) the aggregate outstanding principal amount of the Revolving Loans and
Swing Loans, if any, made by such Lender and (ii) any Letter of Credit
Liabilities of such Lender. Such commitment fee shall accrue from and including
the Original Closing Date to but excluding the date of termination of the
Revolving Commitments in their entirety.
(b) The Borrower shall pay to the Administrative Agent (i) for the
account of the Lenders ratably a letter of credit fee accruing daily on the
aggregate amount then available for drawing under all Letters of Credit at the
Letter of Credit Fee Rate (determined daily in accordance with the Pricing
Schedule) and (ii) for the account of each Issuing Lender a letter of credit
fronting fee accruing daily on the aggregate amount then available for drawing
under all Letters of Credit issued by such Issuing Lender at a rate per annum
equal to 0.25%.
(c) Accrued fees under this Section shall be payable quarterly in
arrears on each Quarterly Date and on the date of termination of the Commitments
in their entirety (and, if later, the date the amount of Letter of Credit
Liabilities shall be reduced to zero).
SECTION 2.07. Optional Termination or Reduction of Commitments. During
the Revolving Credit Period, the Borrower may, upon at least three Domestic
Business Days' notice to the Administrative Agent, (i) terminate the Revolving
Commitments at any time, if no Revolving Loans or Swing Loans are outstanding at
such time and no Letter of Credit Liabilities exist or (ii) ratably reduce from
time to time by an aggregate amount of $10,000,000 or a larger multiple of
$1,000,000, the aggregate amount of the Revolving Commitments in excess of the
sum of the aggregate outstanding principal amount of the Revolving Loans and the
Swing Loans, plus the aggregate amount of Letter of Credit Liabilities.
SECTION 2.08. Mandatory Incremental Repayments, and Reduction of
Commitments.
(a) Term Loans shall be repaid and Revolving Commitments shall be
reduced in the following amounts:
(i) in the event that the Borrower or any of its
Subsidiaries shall at any time, or from time to time, after
the date hereof receive any Net Cash Proceeds of any Reduction
Event, an amount equal to the Reduction Amount thereof; and
(ii) if the Leverage Ratio as of the last day of any
Fiscal Year ending after the Amendment Effective Date is not
less than 3.25:1, an amount equal to the sum of (x) the
Reduction Amount of Excess Cash Flow for such Fiscal Year plus
(y) the Reduction Amount of Excess Cash Flow for each prior
Fiscal Year ended after the Amendment Effective Date for which
no amounts have theretofore been applied to the repayment or
reduction of Loans or Commitments pursuant to this clause
(ii).
provided that no repayment or reduction with respect to the receipt of
any Major Casualty Proceeds shall be required if (i) promptly after the loss
giving rise to such Major Casualty Proceeds, the Borrower delivers notice to the
Lenders setting forth in reasonable detail the Borrower's plans to restore,
repair or replace the property affected thereby, and the Required Lenders
consent to such use of such proceeds (such consent not to be unreasonably
withheld, but which shall be deemed to be withheld if not obtained within 30
days after the receipt of such proceeds) and (ii) to the extent that such
proceeds are actually so used within one year after such loss. Such reductions
and repayments shall be applied, first, to repay an aggregate principal amount
of the Term Loans until the Term Loans have been repaid in full and, thereafter,
to reduce the Revolving Commitments. Any repayment of Term Loans required
pursuant to this Section 2.08(a) shall be applied to reduce the amount of
subsequent scheduled repayments of Term Loans required pursuant to Section
2.04(b) ratably to all such subsequent scheduled repayments.
(b) The repayments and reductions required by clauses (a)(i) and
(a)(ii) of this Section shall be required or effective, in the case of clause
(a)(i), forthwith upon receipt by the Borrower or any of its Subsidiaries, as
the case may be, of such Net Cash Proceeds (or in the case of Net Cash Proceeds
from the receipt of any Major Casualty Proceeds as to which the Borrower has
requested the consent of the Required Lenders referred to in clause (a) above,
upon the failure of the Required Lenders to grant such consent or, if earlier,
30 days after the receipt thereof) and, in the case of clause (a)(ii), on the
90th day after the end of the related Fiscal Year; provided that if any such
repayment or reduction in the Commitments pursuant to either clause (a)(i) or
(a)(ii) of this section would otherwise require prepayment of Euro-Dollar Loans
or portions thereof prior to the last day of the then current Interest Period,
such amount may (unless the Required Lenders otherwise direct) instead be
pledged with the Administrative Agent on terms satisfactory to the
Administrative Agent (and invested in such Temporary Cash Investments as the
Administrative Agent shall select, with interest or income thereon for the
account of the Borrower), and such prepayment may be deferred to the last day of
the Interest Period next ending after the date of such receipt.
(c) If at any time (including, without limitation on the date of each
reduction of Revolving Commitments or as a result of a change in the Borrowing
Base), the aggregate amount of Revolving Credit Available Amounts is less than
the sum of (i) the aggregate outstanding principal amount of Revolving Loans and
Swing Loans plus (ii) the aggregate amount of Letter of Credit Liabilities, the
Borrower shall be obligated to prepay or repay Revolving Loans and Swing Loans,
and collateralize outstanding Letters of Credit, in such amounts as shall be
necessary so that immediately after such payment the sum of (i) the aggregate
outstanding principal amount of Revolving Loans and Swing Loans plus (ii) the
aggregate amount of Letter of Credit Liabilities does not exceed the aggregate
amount of the Revolving Credit Available Amounts (after giving effect to any
reductions on such day).
(d) Each repayment or prepayment pursuant to this Section 2.08 shall
be made together with accrued interest to the date of payment, and shall be
applied ratably to payment of the Loans of the several Lenders in proportion to
their Commitments (or, if the Commitments have been terminated, to the aggregate
outstanding principal amounts of their Loans). Within the foregoing limits of
this Section 2.08, each required payment or prepayment shall be made with
respect to such outstanding Group or Groups of Loans (or any Swing Loans) as the
Borrower may designate to the Administrative Agent not less than three
Euro-Dollar Business Days prior to the date required for such payment or
prepayment or, failing such designation by the Borrower, as the Administrative
Agent may specify by notice to the Borrower and the Lenders.
SECTION 2.09. Optional Prepayments. (a)Subject in the case of any Euro-
Dollar Borrowing to Section 2.12, the Borrower may, upon at least one Domestic
Business Day's notice to the Administrative Agent, prepay any Group of Base Rate
Loans or Swing Loans or upon at least three Euro-Dollar Business Days' notice to
the Administrative Agent, prepay any Group of Euro-Dollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000 (or, in the case of any Swing
Loan, $250,000 or any larger multiple thereof), by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the several Lenders included in such Group.
(b) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Lender of the contents
thereof and of such Lender's ratable share of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
(c) Any prepayment of Term Loans pursuant to this Section shall be
applied to reduce the amount of subsequent scheduled repayments of Term Loans
required by Section 2.04 ratably to all the remaining such repayments.
SECTION 2.10. Method of Electing Interest Rates. (a) The Loans included
in each Borrowing shall bear interest initially at the type of rate specified by
the Borrower in the applicable Notice of Borrowing. Thereafter, the Borrower may
from time to time elect to change or continue the type of interest rate borne by
each Group of Loans (subject in each case to the provisions of Article 8, and
except for any Swing Loan), as follows:
(i) if such Loans are Base Rate Loans, the Borrower
may elect to convert such Loans to Euro-Dollar Loans as of any
Euro-Dollar Business Day; and
(ii) if such Loans are Euro-Dollar Loans, the
Borrower may elect to convert such Loans to Base Rate Loans or
elect to continue such Loans as Euro-Dollar Loans for an
additional Interest Period, subject to Section 2.12 in the
case of any such conversion or continuation effective on any
day other than the last day of the then current Interest
Period applicable to such Loans.
Each such election shall be made by delivering a notice (a) "Notice
of Interest Rate Election") to the Administrative Agent not later than 10:00
A.M. (New York City time) on the third Euro-Dollar Business Day before the
conversion or continuation selected in such notice is to be effective. A Notice
of Interest Rate Election may, if it so specifies, apply to only a portion of
the aggregate principal amount of the relevant Group of Loans; provided that (i)
such portion is allocated ratably among the Loans comprising such Group and (ii)
the portion to which such Notice applies, and the remaining portion to which it
does not apply, are each $5,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which
such notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply
with the applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if the Loans being
converted are to be Euro-Dollar Loans, the duration of the
next succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar
Loans for an additional Interest Period, the duration of such
additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election
shall comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall
promptly notify each Lender of the contents thereof and such notice shall not
thereafter be revocable by the Borrower. If the Borrower fails to deliver a
timely Notice of Interest Rate Election to the Administrative Agent for any
Group of Euro-Dollar Loans, such Loans shall be converted into Base Rate Loans
on the last day of the then current Interest Period applicable thereto.
(d) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall not
constitute a "Borrowing" subject to the provisions of Section 3.02.
SECTION 2.11. General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of
Letter of Credit Liabilities and interest thereon and of fees hereunder (other
than fees payable directly to the Issuing Lenders), not later than 12:00 Noon
(New York City time) on the date when due, in Federal or other funds immediately
available in New York City, to the Administrative Agent at its address referred
to in Section 10.01. The Administrative Agent will promptly distribute to each
Lender its ratable share of each such payment received by the Administrative
Agent for the account of the Lenders. Whenever any payment of principal of, or
interest on, the Base Rate Loans, or of Letter of Credit Liabilities or interest
thereon or of fees shall be due on a day which is not a Domestic Business Day,
the date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(b) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment, each Lender shall
repay to the Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Funding Losses. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (pursuant to Article 2, 6 or 8 or otherwise) on
any day other than the last day of an Interest Period applicable thereto, or the
last day of an applicable period fixed pursuant to Section 2.05(c) , or if the
Borrower fails to borrow, prepay, convert or continue any Euro-Dollar Loans
after notice has been given to any Lender in accordance with Section 2.02(b),
2.09(c) or 2.10(a), the Borrower shall reimburse each Lender within 15 days
after demand for any resulting loss or expense incurred by it (or by an existing
or prospective Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
conversion or failure to borrow, prepay, convert or continue, provided that such
Lender shall have delivered to the Borrower a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.13. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. Regulation D Compensation. For so long as any Lender
maintains reserves against "Eurocurrency liabilities" (or any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of such Lender to
United States residents), and as a result the cost to such Lender (or its
Euro-Dollar Lending Office) of making or maintaining its Euro-Dollar Loans is
increased, then such Lender may require the Borrower to pay, contemporaneously
with each payment of interest on the Euro-Dollar Loans, additional interest on
the related Euro-Dollar Loan of such Lender at a rate per annum up to but not
exceeding the excess of (i) (A) the applicable London Interbank Offered Rate
divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the
applicable London Interbank Offered Rate. Any Lender wishing to require payment
of such additional interest (x) shall so notify the Borrower and the
Administrative Agent, in which case such additional interest on the Euro-Dollar
Loans of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period commencing at least three
Euro-Dollar Business Days after the giving of such notice and (y) shall furnish
to the Borrower at least five Euro-Dollar Business Days prior to each date on
which interest is payable on the Euro-Dollar Loans an Officer's certificate
setting forth the amount to which such Lender is then entitled under this
Section (which shall be consistent with such Lender's good faith estimate of the
level at which the related reserves are maintained by it). Each such certificate
shall be accompanied by such information as the Borrower may reasonably request
as to the computation set forth therein.
SECTION 2.15. Letters of Credit. (a) On the Original Closing Date, each
letter of credit listed on Schedule 1 hereto was deemed to be issued under this
Section 2.15(a) and was deemed to be a Letter of Credit for all purposes hereof.
Subject to the terms and conditions hereof, each Issuing Lender agrees to issue
letters of credit hereunder from time to time before the tenth day before the
Maturity Date upon the request of the Borrower (the "Letters of Credit");
provided that, immediately after each Letter of Credit is issued, the aggregate
amount of the Letter of Credit Liabilities shall not exceed the Available LC
Amount. Upon the date of issuance by an Issuing Lender of a Letter of Credit,
the Issuing Lender shall be deemed, without further action by any party hereto,
to have sold to each Lender, and each Lender shall be deemed, without further
action by any party hereto, to have purchased from the Issuing Lender, a
participation in such Letter of Credit and the related Letter of Credit
Liabilities in proportion to their respective Revolving Percentages.
(b) The Borrower shall give the Issuing Lender notice at least five
days prior to the requested issuance of a Letter of Credit specifying the date
such Letter of Credit is to be issued, and describing the terms of such Letter
of Credit and the nature of the transactions to be supported thereby (such
notice, including any such notice given in connection with the extension of a
Letter of Credit, a "Notice of Issuance"). Upon receipt of a Notice of Issuance,
the Issuing Lender shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of the amount of such Lender's participation in such Letter of Credit. The
issuance by the Issuing Lender of each Letter of Credit shall, in addition to
the conditions precedent set forth in Article 3, be subject to the conditions
precedent that such Letter of Credit shall be in such form and contain such
terms as shall be satisfactory to the Issuing Lender and that the Borrower shall
have executed and delivered such other instruments and agreements relating to
such Letter of Credit as the Issuing Lender shall have reasonably requested. The
Borrower shall also pay to the Issuing Lender for its own account issuance,
drawing, amendment and extension charges in the amounts and at the times as
agreed between the Borrower and the Issuing Lender. The extension or renewal of
any Letter of Credit shall be deemed to be an issuance of such Letter of Credit,
and if any Letter of Credit contains a provision pursuant to which it is deemed
to be extended unless notice of termination is given by the Issuing Lender, the
Issuing Lender shall timely give such notice of termination unless it has
theretofore timely received a Notice of Issuance and the other conditions to
issuance of a Letter of Credit have also theretofore been met with respect to
such extension. Except as set forth on Schedule 1 hereto, no Letter of Credit
shall have a term of more than one year; provided that a Letter of Credit may
contain a provision pursuant to which it is deemed to be extended on an annual
basis unless notice of termination is given by the Issuing Lender; provided
further that no Letter of Credit shall have a term extending or be so extendible
beyond the Maturity Date.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the Issuing Lender shall notify
the Administrative Agent and the Administrative Agent shall promptly notify the
Borrower and each other Lender as to the amount to be paid as a result of such
demand or drawing and the payment date. The Borrower shall be irrevocably and
unconditionally obligated forthwith to reimburse the Issuing Lender for any
amounts paid by the Issuing Lender upon any drawing under any Letter of Credit,
without presentment, demand, protest or other formalities of any kind. All such
amounts paid by the Issuing Lender and remaining unpaid by the Borrower shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the rate applicable to Base Rate Loans for such day.
In addition, each Lender will pay to the Administrative Agent, for the account
of the Issuing Lender, immediately upon the Issuing Lender's demand at any time
during the period commencing after such drawing until reimbursement therefor in
full by the Borrower, an amount equal to such Lender's ratable share of such
drawing (in proportion to its participation therein), together with interest on
such amount for each day from the date of the Issuing Lender's demand for such
payment (or, if such demand is made after 12:00 Noon (New York City time) on
such date, from the next succeeding Domestic Business Day) to the date of
payment by such Lender of such amount at a rate of interest per annum equal to
the rate applicable to Base Rate Loans for such period. The Issuing Lender will
pay to each Lender ratably all amounts received from the Borrower for
application in payment of its reimbursement obligations in respect of any Letter
of Credit, but only to the extent such Lender has made payment to the Issuing
Lender in respect of such Letter of Credit pursuant hereto.
(d) The obligations of the Borrower and each Lender under subsection
(c) above shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including without limitation the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any Letter of Credit or any document related
hereto or thereto;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of this Agreement
or any Letter of Credit or any document related hereto or
thereto;
(iii) the use which may be made of the Letter of
Credit by, or any acts or omission of, a beneficiary of a
Letter of Credit (or any Person for whom the beneficiary may
be acting);
(iv) the existence of any claim, set-off, defense or
other rights that the Borrower may have at any time against a
beneficiary of a Letter of Credit (or any Person for whom the
beneficiary may be acting), the Lenders (including the Issuing
Lender) or any other Person, whether in connection with this
Agreement or the Letter of Credit or any document related
hereto or thereto or any unrelated transaction;
(v) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue
or inaccurate in any respect whatsoever;
(vi) payment under a Letter of Credit against
presentation to the Issuing Lender of a draft or certificate
that does not comply with the terms of the Letter of Credit,
provided that the Issuing Lender's determination that
documents presented under the Letter of Credit comply with the
terms thereof shall not have constituted gross negligence or
willful misconduct of the Issuing Lender; or
(vii) any other act or omission to act or delay of
any kind by any Lender (including the Issuing Lender), the
Administrative Agent or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of
this subsection (vii), constitute a legal or equitable
discharge of the Borrower's or the Lender's obligations
hereunder.
(e) The Borrower hereby indemnifies and holds harmless each Lender
(including each Issuing Lender) and the Administrative Agent from and against
any and all claims, damages, losses, liabilities, costs or expenses which such
Lender or the Administrative Agent may incur (including, without limitation, any
claims, damages, losses, liabilities, costs or expenses which the Issuing Lender
may incur by reason of or in connection with the failure of any other Lender to
fulfill or comply with its obligations to such Issuing Lender hereunder (but
nothing herein contained shall affect any rights the Borrower may have against
such defaulting Lender)), and none of the Lenders (including an Issuing Lender)
nor the Administrative Agent nor any of their officers or directors or employees
or agents shall be liable or responsible, by reason of or in connection with the
execution and delivery or transfer of or payment or failure to pay under any
Letter of Credit, including without limitation any of the circumstances
enumerated in subsection (d) above, as well as (i) any error, omission,
interruption or delay in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, (ii) any error in interpretation of
technical terms, (iii) any loss or delay in the transmission of any document
required in order to make a drawing under a Letter of Credit, (iv) any
consequences arising from causes beyond the control of the Issuing Lender,
including without limitation any government acts, or any other circumstances
whatsoever in making or failing to make payment under such Letter of Credit;
provided that the Borrower shall not be required to indemnify the Issuing Lender
for any claims, damages, losses, liabilities, costs or expenses, and the
Borrower shall have a claim for direct (but not consequential) damage suffered
by it, to the extent caused by (x) the willful misconduct or gross negligence of
the Issuing Lender in determining whether a request presented under any Letter
of Credit complied with the terms of such Letter of Credit or (y) the Issuing
Lender's failure to pay under any Letter of Credit after the presentation to it
of a request strictly complying with the terms and conditions of the Letter of
Credit. Nothing in this subsection (e) is intended to limit the obligations of
the Borrower under any other provision of this Agreement. To the extent the
Borrower does not indemnify an Issuing Lender as required by this subsection,
the Lenders agree to do so ratably in accordance with their Revolving
Commitments.
SECTION 2.16. Assignments and Assumptions on the Amendment Effective
Date; Non-Continuing Lenders.
(a) On and effective as of the Amendment Effective Date, (i) each
Assigning Lender hereby assigns and sells to the Assuming Lenders (ratably in
accordance with the aggregate amounts thereof purchased and accepted by each
such Assuming Lender hereunder pursuant to clause (ii) below) a portion of its
Revolving Commitment (including without limitation rights and obligations with
respect to outstanding Letters of Credit) and each of its Revolving Loans and
Term Loans outstanding as of immediately prior to the Amendment Effective Date,
and (ii) each Assuming Lender hereby purchases and accepts from the Assigning
Lenders (ratably in accordance with the respective amounts thereof assigned and
sold by each such Assigning Lender pursuant to clause (i) above), a portion of
such Revolving Commitments (including without limitation rights and obligations
with respect to outstanding Letters of Credit) and Revolving Loans and Term
Loans outstanding as of immediately prior to the Amendment Effective Date (the
"Assigned Amounts"), such that after giving effect to all such transactions:
(x) each Assigning Lender shall have a Revolving
Commitment and an outstanding principal amount of Revolving
Loan and Term Loan in the respective amounts set forth under
the applicable heading opposite such Assigning Lender's name
on Schedule 2 hereto; and
(y) each Assuming Lender shall (i) if such Assuming
Lender was not a Lender immediately prior to the Amendment
Effective Date, become a "Lender" for all purposes under the
Agreement and (ii) in any case, have a Revolving Commitment
and an outstanding principal amount of Revolving Loan and Term
Loan in the respective amounts set forth under the applicable
heading opposite such Assuming Lender's name on Schedule 3
hereto. A Person may be both an Assigning Lender and an
Assuming Lender.
(b) The transactions referred to in clause (a) shall be effective as
of the Amendment Effective Date upon (i) payment by each Assuming Lender to the
Administrative Agent, for the account of the several Assigning Lenders in
accordance with clause (a) above of the respective amounts on Part 1 of Schedule
4 hereto opposite such Assuming Lender's name under the heading "Amount To Be
Paid by Assuming Lenders" (representing the principal amount of, without accrued
interest on, the Term Loans and the Revolving Loans, respectively, purchased by
such Assuming Lender) and (ii) receipt by each Assigning Lender of the
respective amounts on Part 2 of Schedule 4 hereto opposite such Assigning
Lender's name under the heading "Amount To Be Received by Assigning Lenders"
(representing the principal amount of, without accrued interest on, the Term
Loans and the Revolving Loans, respectively, transferred by such Assigning
Lender).
(c) It is understood that fees pursuant to Section 2.06(a) and (b) with
respect to the portion of the Revolving Commitments, and interest on the portion
of the Revolving Loans and Term Loans, assigned hereunder by each Assigning
Lender accruing prior to the Amendment Effective Date are for the account of
such Assigning Lender, and such fees and interest with respect to the portion of
the Revolving Commitments, Revolving Loans and Term Loans assumed hereunder by
each Assuming Lender accruing from and including the Amendment Effective Date
are for the account of such Assuming Lender. Each Assigning Lender and each
Assuming Lender hereby agrees that if it receives any amount under this
Agreement which is for the account of any other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
(d) Each Loan that is outstanding immediately prior to the Amendment
Effective Date shall continue to bear interest at the rate provided for in the
Agreement as in effect immediately prior to the Amendment Effective Date, except
that the margin applicable to the pricing of any such Loan shall be, for the
period on and after the Amendment Effective Date, the applicable margin provided
for herein. As soon as practicable following the Amendment Effective Date, the
Borrower shall reimburse each Assigning Lender (and any Person that was a Lender
immediately prior to the Amendment Effective Date) in accordance with Section
2.12 for any funding losses incurred in connection with the purchase of any
Loans on the Amendment Effective Date as if such Loans had been prepaid on the
Amendment Effective Date.
(e) Each Assigning Lender makes no representation or warranty in
connection with, and shall have no responsibility with respect to, the solvency,
financial condition, or statements of the Borrower, or the validity and
enforceability of the obligations of the Borrower in respect of any Loan
Document. Each Assuming Lender acknowledges that it has, independently and
without reliance on any Assigning Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower. Each Assigning Lender represents that, other than
pursuant to this Agreement, it has not transferred any interest in or caused any
Lien to be created with respect to the Assigned Amounts assigned by it
hereunder.
(f) Any Assigning Lender whose principal amount of Term Loans and
Revolving Commitment are zero after giving effect to this Agreement (a
"Non-Continuing Lender") shall upon the effectiveness of its assignment pursuant
to clause (b) above and receipt of all amounts due from the Borrower in respect
of interest and fees accrued to but excluding the Amendment Effective Date,
cease to be a Lender party to the Agreement; provided that the provisions of
Section 2.12, Article 8 and Section 10.03 of the Agreement shall continue to
inure to the benefit of each such Non-Continuing Lender.
(g) The parties hereto agree that the transactions described in this
Section shall be deemed to be assignments effective in accordance with Section
10.06(c).
ARTICLE 3
CONDITIONS
SECTION 3.1. Amendment Effective Date. The Amendment shall become
effective upon the date upon which each of the following events shall have been
satisfied (in the case of each document to be received, each dated the Amendment
Effective Date unless otherwise indicated):
(a) receipt by the Administrative Agent of counterparts hereof
signed by each of the parties hereto (or, in the case of any party as
to which an executed counterpart shall not have been received, receipt
by the Administrative Agent in form satisfactory to it of telegraphic,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party);
(b) receipt by the Administrative Agent of a duly executed
original Note for the account of each Lender becoming a Lender on the
Amendment Effective Date, complying with the provisions of Section
2.03;
(c) receipt by the Administrative Agent of duly executed
counterparts of an amendment of each Collateral Document, to the extent
any such amendment is necessary or advisable, or evidence satisfactory
to the Administrative Agent that adequate arrangements for execution
and delivery of any such amendments have been made (and all Lenders
hereby consent to all such amendments);
(d) receipt by the Administrative Agent of an opinion of ▇▇▇▇▇
▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., counsel for the Obligors, substantially
in the form of Exhibit D hereto and covering such additional matters
relating to the transactions contemplated hereby as the Required
Lenders may reasonably request;
(e) receipt by the Administrative Agent of (i) an opinion of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special New York counsel for the Administrative
Agent, substantially in the form of Exhibit E-1 hereto and (ii) an
opinion or memorandum of special counsel for the Agents in each of the
United Kingdom, Hong Kong, Finland, Germany, the U.S. Virgin Islands,
France, Canada and Mexico, in the forms attached as Exhibit E-2, and
each covering such additional matters relating to the transactions
contemplated hereby as the Agents may reasonably request, or evidence
satisfactory to the Administrative Agent that adequate arrangements for
the delivery of any such opinion or memorandum under clause (ii) have
been made;
(f) receipt by the Administrative Agent of evidence
satisfactory to it that all accrued interest, fees and other amounts
payable under the Agreement as in effect immediately prior to the
Amendment Effective Date (including Section 2.06 thereof, but excluding
Section 2.12 thereof) have been paid in full;
(g) receipt by the Administrative Agent of the consent to this
Amendment of each Person that was a Lender immediately prior to the
Amendment Effective Date but is not a Lender on or after the Amendment
Effective Date (which consent may be evidenced by such Person being a
signatory hereto);
(h) receipt by the Administrative Agent of a certificate
signed by the chief financial officer or treasurer of the Borrower
certifying that, immediately before and after giving effect to the
transaction contemplated hereby on the Amendment Effective Date, (i) no
Default shall have occurred and be continuing and (ii) the
representations and warranties of the Obligors contained in this
Agreement shall be true;
(i) receipt by the Administrative Agent, for its own account
and for the accounts of the Lenders, of all fees payable on or before
the Amendment Effective Date;
(j) receipt by the Administrative Agent of all documents the
Administrative Agent may reasonably request relating to the existence
of the Obligors, the corporate authority for and the validity of the
Loan Documents and the Deltec Acquisition, and any other matters
relevant hereto, all in form and substance satisfactory to the
Administrative Agent.
The Administrative Agent shall promptly notify the Borrower and the Lenders of
the Amendment Effective Date, and such notice shall be conclusive and binding on
all parties hereto.
SECTION 3.02. Borrowings and Issuances of Letters of Credit. The
obligation of any Lender to make a Loan on the occasion of any Borrowing other
than a Refunding Swing Loan, and of an Issuing Lender to issue (which shall be
deemed to include any renewal or extension of the term of) a Letter of Credit on
the occasion of a request therefor (including, without limitation, any of the
foregoing to occur on the Amendment Effective Date) is subject to the
satisfaction of the following conditions:
(a) the fact that the Amendment Effective Date shall have
occurred on or prior to April 30, 1997;
(b) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.02 or receipt by the Issuing Lender
of a Notice of Issuance as required by Section 2.15(b);
(c) receipt by the Administrative Agent of the most recent
Borrowing Base Certificate required to be delivered pursuant to Section
5.01(i) hereof;
(d) the fact that, immediately after such Borrowing or
issuance of a Letter of Credit, the sum of the aggregate outstanding
principal amount of the Revolving Loans and Swing Loans and the
aggregate amount of Letter of Credit Liabilities will not exceed the
aggregate Revolving Credit Available Amounts;
(e) the fact that, immediately before and after such Borrowing
or issuance of a Letter of Credit, no Default shall have occurred and
be continuing; and
(f) the fact that the representations and warranties of the
Obligors contained in this Agreement shall be true.
Each Borrowing and issuance of a Letter of Credit hereunder shall be
deemed to be a representation and warranty by the Borrower on the date of such
Borrowing as to the facts specified in clauses (d), (e) and (f) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants, and each Guarantor represents
and warrants, with respect to itself only, as to the matters set forth in
Section 4.12, (including, in the case of any such representation and warranty
made or deemed made before the consummation of the Deltec Acquisition, at the
time such representation and warranty is made or deemed made and immediately
after giving effect to the consummation of the Deltec Acquisition), that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contraventions. The execution, delivery and performance by the Borrower of
the Loan Documents to which it is a party are within the corporate powers of the
Borrower, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Borrower or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Borrower or any of its Subsidiaries or result
in the creation or imposition of any Lien (other than Liens under the Loan
Documents) on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. The Loan Documents (other than the Notes)
to which the Borrower is a party constitute valid and binding agreements of the
Borrower and each Note, when executed and delivered in accordance with this
Agreement, will constitute a valid and binding obligation of the Borrower, in
each case enforceable in accordance with its terms except (i) as may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights generally
and (ii) as rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability.
SECTION 4.04. Financial Information. (a) The (i) consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of September 30, 1996
and the related consolidated statements of income and cash flows for the Fiscal
Year then ended, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. and set forth in the
Borrower's 1996 Form 10-K, a copy of which has been delivered to each of the
Lenders, and (ii) consolidating balance sheet of the Borrower and its
Consolidated Subsidiaries as of September 30, 1996 and the related consolidating
statements of income for the Fiscal Year then ended, each fairly present, in
conformity with generally accepted accounting principles, the consolidated or
consolidating (as applicable) financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated or consolidated
(as applicable) results of operations and consolidated cash flows for such
Fiscal Year.
(b) Since September 30, 1996, there has been no material adverse change
in the business, financial position, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole (both before
and after giving effect to the Deltec Acquisition, and including Deltec and its
Subsidiaries after the Deltec Acquisition).
(c) The consolidated balance sheet of Deltec and its consolidated
Subsidiaries as of September 30, 1995 and the related consolidated statements of
income and cash flows for the nine months then ended, copies of which have been
delivered to each of the Lenders, fairly present, in conformity with generally
accepted accounting principles, the consolidated financial position of Deltec
and its consolidated Subsidiaries as of such date and their consolidated results
of operations and cash flows for such period.
(d) From September 30, 1995 to the Original Closing Date, there has
been no material adverse change in the business, financial position, results of
operations or prospects of Deltec and its Subsidiaries, considered as a whole.
(e) The pro forma balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 1995 with respect to the Borrower and its
Consolidated Subsidiaries, copies of which have been delivered to each of the
Lenders, fairly presents, in conformity with generally accepted accounting
principles applied on a basis consistent with the financial statements referred
to in Section 4.04(a), the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date, adjusted to give effect (as if
such events had occurred on such date) to (A) the Deltec Acquisition and other
transactions contemplated by the Deltec Acquisition Documents, (B) the making of
the Loans and the issuance of the Letters of Credit to be made or issued on the
Original Closing Date, (C) the issuance of the Subordinated Notes on or before
the Original Closing Date, (D) the application of the proceeds from the
foregoing as contemplated by the Deltec Acquisition Documents, this Agreement
and the Subordinated Note Agreement and (E) the payment of all legal, accounting
and other fees related thereto to the extent known at the time of the
preparation of such balance sheet. As of the date of such balance sheet and the
date hereof, the Borrower and its Consolidated Subsidiaries (on a pro forma
basis as aforesaid) had and (except as incurred since the date of such balance
sheet in the ordinary course of business) have no material liabilities,
contingent or otherwise, including liabilities for taxes, long-term leases or
forward or long-term commitments, which are not properly reflected on such
balance sheet.
SECTION 4.05. Litigation. Except as set forth on Schedule 4.05,
there is no action, suit or proceeding pending against, or to the knowledge of
the Borrower threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which
could materially adversely affect the business, consolidated financial position
or consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity or enforceability of the Loan Documents or challenges the Deltec
Acquisition.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site disposal
of wastes or Hazardous Substances, and any actual or potential liabilities to
third parties, including employees, and any related costs and expenses). On the
basis of this review, the Borrower has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with Environmental
Laws, are unlikely to have a material adverse effect on the business, financial
condition, results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.08. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 4.09. Subsidiaries. Each of the Borrower's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except for any of the foregoing the failure of which to have could not in the
aggregate have a material adverse effect on the business, financial position,
results of operations or prospects of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or the rights and remedies of the Lenders
under the Loan Documents. On the Original Closing Date and after giving effect
to the Deltec Acquisition, (i) each of the Subsidiaries of the Borrower, other
than International Subsidiaries, is a Guarantor and (ii) the Borrower and its
Subsidiaries (other than International Subsidiaries) have pledged, pursuant to
the Pledge Agreements, all of the capital stock of the Borrower's Subsidiaries
other than (x) the Deltec Seller Stock, (y) up to 35% of the capital stock of
each International Subsidiary owned by the Borrower or a Subsidiary other than
an International Subsidiary and (z) capital stock of each International
Subsidiary owned by an International Subsidiary.
SECTION 4.10. Regulatory Restrictions on Borrowing. The Borrower
is not an "investment company" within the meaning of the Investment Company Act
of 1940, as amended, a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or otherwise subject to any
regulatory scheme which restricts its ability to incur debt.
SECTION 4.11. Full Disclosure. All information heretofore furnished
by the Borrower to any Agent or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to the Agent or any Lender will
be, true and accurate in all material respects on the date as of which such
information is stated or certified. The Borrower has disclosed to the Lenders in
writing any and all facts which materially and adversely affect or may affect
(to the extent the Borrower can now reasonably foresee), the business,
operations or financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or the ability of the Obligors to perform their
obligations under the Loan Documents.
SECTION 4.12. Representations of Guarantors. Each Guarantor is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The execution, delivery and
performance by each Guarantor of the Loan Documents to which it is a party are
within such Guarantor's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of such Guarantor or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
such Guarantor or result in the creation or imposition of any Lien on any asset
of such Guarantor. The Loan Documents to which each Guarantor is a party
constitute valid and binding agreements of such Guarantor, in each case
enforceable against such Guarantor in accordance with their respective terms
except (i) as may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) as rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability. Each of the representations and warranties of the
Obligors contained in the Collateral Documents is true and correct.
SECTION 4.13. Deltec Acquisition Documents. The representations and
warranties contained in the Deltec Acquisition Documents of the Borrower and, to
the best knowledge of the Borrower, each other party thereto are, and shall be,
true in all material respects on the date hereof and the Original Closing Date.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note or any Letter of Credit Liability
remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
Lenders:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated and consolidating balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such Fiscal Year and the related consolidated and consolidating
statements of income and consolidated statement of cash flows for such
Fiscal Year, setting forth in the case of such consolidated financial
statements in comparative form the figures for the previous Fiscal
Year, all certified by the chief financial officer or chief accounting
officer of the Borrower as to fairness of presentation, generally
accepted accounting principles and consistency and, in the case of such
consolidated financial statements, reported on in a manner acceptable
to the Securities and Exchange Commission by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or
other independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each Fiscal Year of the
Borrower, an unaudited consolidated and consolidating balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such
quarter and the related consolidated and consolidating statements of
income and consolidated cash flows for such quarter and for the portion
of the Borrower's Fiscal Year ended at the end of such quarter, setting
forth in the case of such consolidated statements of income and cash
flows, in comparative form the figures for the corresponding quarter
and the corresponding portion of the Borrower's previous Fiscal Year,
all certified (subject to normal year-end adjustments) as to fairness
of presentation, generally accepted accounting principles and
consistency by the chief financial officer or the chief accounting
officer of the Borrower;
(c) as soon as available and in any event within 30 days after
the end of each month of the Borrower (or, in the case of the months
ending March 31, 1996, April 30, 1996 and May 31, 1996, 45 days after
the end of each such month), an unaudited summary consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such month and the related summary consolidated statements of income
and cash flows for such month and for the portion of the Borrower's
Fiscal Year ended at the end of such month, setting forth in
comparative form the figures for the corresponding month and the
corresponding portion of the Borrower's previous Fiscal Year, all
certified (subject to normal quarterly and year-end adjustments) as to
fairness of presentation, generally accepted accounting principles (as
applicable) and consistency by the chief financial officer or the chief
accounting officer of the Borrower;
(d) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.07, 5.09 through 5.14, inclusive, and 5.18
through 5.20, inclusive, on the date of such financial statements, (ii)
if such certificate is delivered with financial statements referred to
in clause (a), setting forth in reasonable detail the computation of
Excess Cash Flow for the Fiscal Year to which such financial statements
relate, certified as having been prepared from such financial
statements in accordance with this Agreement, (iii) stating whether any
Subsidiary has been created or acquired, and whether any Immaterial
Subsidiary has ceased to be an Immaterial Subsidiary, since the
delivery of the last such certificate (or in the case of the first such
certificate, since the date hereof) and describing in reasonable detail
any such Subsidiary and (iv) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth
the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(e) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
whether anything has come to their attention to cause them to believe
that any Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (d) above;
(f) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(g) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(h) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Borrower
shall have filed with the Securities and Exchange Commission, and
copies of (i) all financial statements, reports, notices and proxy
statements that any Obligor shall send or make available generally to
its stockholders, (ii) all registration statements and prospectuses
that any Obligor shall render to or file with the Securities and
Exchange Commission, the National Association of Securities Dealers or
any national securities exchange, (iii) all material reports and other
statement (other than routine reports prepared in the ordinary course
of business that would not result in any adverse action) that any
Obligor may render to or file with any other governmental authority,
including, without limitation, the Environmental Protection Agency and
state and federal environmental and health authorities and agencies and
(iv) all press releases and other statements that any Obligor shall
make available generally to the public concerning developments in the
business of the Borrower or any of its Subsidiaries, other than press
releases or statements issued in the ordinary course of business;
(i) at each of the following dates, determined as of the
following dates specified: a Borrowing Base Certificate (x) as soon as
available (and in any event within fifteen days) after the last day of
each calendar month of the Borrower, determined as of the last business
day of such calendar month, and (y) within five days after receipt of a
request therefor (which may be given from time to time) from the
Required Lenders, determined as of the date of such request; provided
that in the case of clause (y) above, the determination of the
Borrowing Base shall be an estimate by the Borrower, subject to normal
month-end adjustments and determined in good faith using reasonable
methods consistent with the accounting methods used in the financial
statements most recently delivered pursuant to Section 4.04(a) or
5.01(a);
(j) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the chief financial officer
or the chief accounting officer of the Borrower setting forth details
as to such occurrence and action, if any, which the Borrower or
applicable member of the ERISA Group is required or proposes to take;
(k) as soon as practicable and in any event within 60 days
after the close of each Fiscal Year, an annual budget prepared on a
quarterly basis for the Borrower and its Subsidiaries and projections
for the Borrower for the Fiscal Year then beginning, all prepared (in
the case of projections) on a basis consistent with the financial
statements described in subsection (a) and (b) above, accompanied by a
statement of the chief financial officer or chief accounting officer of
the Borrower to the effect that, to the best of his knowledge, the
budget and projections are a reasonable estimates thereof for the
periods covered thereby; and
(l) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries
or any Guarantor as the Agent, at the request of any Lender, may
reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities (including,
without limitation, tax liabilities and claims of materialmen, warehousemen and
the like which if unpaid might by law give rise to a Lien), except where the
same may be contested in good faith by appropriate proceedings, and will
maintain, and will cause each Subsidiary to maintain, in accordance with
generally accepted accounting principles, appropriate reserves for the accrual
of any of the same.
SECTION 5.03. Maintenance of Property; Insurance. (a) The Borrower
will keep, and will cause each Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted.
(b) The Borrower will maintain, and will cause each Subsidiary to
maintain, (i) physical damage insurance on all real and personal property on an
all risks basis (including the perils of flood and quake), covering the repair
and replacement cost of all such property and consequential loss coverage for
business interruption and extra expense, (ii) public liability insurance
(including products/completed operations liability coverage) in an amount not
less than $22,000,000 and (iii) such other insurance coverage in such amounts
and with respect to such risks as the Required Lenders may reasonably request.
All such insurance shall be provided by insurers having an A.M. Best
policyholders rating of not less than B+ or such other insurers as the Required
Lenders may approve in writing.
(c) The Borrower will deliver to the Lenders (i) on the date of the
first Borrowing hereunder, a certificate from the Borrower's insurance broker
dated such date showing the amount of coverage as of such date, and certifying
that such policies will include effective waivers (whether under the terms of
any such policy or otherwise) by the insurer of all claims for insurance
premiums against all loss payees and additional insureds and all rights of
subrogation against all loss payees and additional insureds, and that if all or
any part of such policy is canceled, terminated or expires, the insurer will
forthwith give notice thereof to each additional insured and loss payee and that
no cancellation, reduction in amount or material change in coverage thereof
shall be effective until at least 10 days after receipt by each additional
insured and loss payee of written notice thereof, (ii) upon request of any
Lender through the Administrative Agent from time to time, full information as
to the insurance carried, (iii) within five days of receipt of notice from any
insurer a copy of any notice of cancellation or material change in coverage from
that existing on the date of this Agreement and (iv) forthwith, notice of any
cancellation or nonrenewal of coverage by the Borrower. Not later than the
Original Closing Date, the Borrower shall cause the Administrative Agent to be
named as an additional insured and loss payee on each insurance policy required
to be maintained pursuant to this Section 5.03.
SECTION 5.04. Conduct of Business and Maintenance of Existence. The
Borrower will preserve, renew and keep in full force and effect, and will cause
each Subsidiary to preserve, renew and keep in full force and effect their
respective corporate existence and their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business; provided
that nothing in this Section shall prohibit (i) the merger of a Subsidiary into
the Borrower, the merger of a Guarantor with another Person if the Person
surviving such merger is a Guarantor or the merger or consolidation of any
Subsidiary that is not a Guarantor with or into another Person if the
corporation surviving such consolidation or merger is a Subsidiary and if, in
each case, after giving effect thereto, no Default shall have occurred and be
continuing or (ii) the failure to maintain any of the foregoing rights,
privileges or franchises that could not in the aggregate have a material adverse
affect on the business, financial position, results of operations or prospects
of the Borrower and its Consolidated Subsidiaries, taken as a whole, or on the
rights of the Lenders under the Loan Documents, or (iii) the termination of the
corporate existence of any Subsidiary other than a Guarantor if the Borrower in
good faith determines that such termination is in the best interest of the
Borrower and is not materially disadvantageous to the Lenders.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and Records; Annual Lender
Meeting.
(a) The Borrower will keep, and will cause each Subsidiary to keep,
proper books of record and account in which full, true and correct entries shall
be made of all dealings and transactions in relation to its business and
activities; and will permit, and will cause each Subsidiary to permit,
representatives of any Lender at such Lender's expense to visit and inspect any
of their respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants, all at such reasonable times and as often as may reasonably be
desired.
(b) Unless otherwise instructed by the Administrative Agent in its
discretion, within 120 days after the end of each Fiscal Year, the Borrower will
conduct a meeting of the Lenders to discuss such fiscal year's results and the
financial condition of the Borrower at which shall be present the chief
executive officer and the chief financial officer of the Borrower and such other
officers of the Borrower as the Borrower's chief executive officer shall
designate. Such meetings shall be held at a time and place convenient to the
Lenders and the Borrower, and shall be in person unless the Administrative Agent
in its discretion notifies the Borrower that any such meeting shall be by
telephone conference.
SECTION 5.07. Mergers and Sales of Assets. (a) The Borrower will
not, and will not permit any Subsidiary to, consolidate or merge with or into
any other Person, provided that (i) the Borrower or any Guarantor may each merge
with another Person if it is the corporation surviving such merger and
immediately after giving effect to such merger, no Default shall have occurred
and be continuing, and (ii) any Subsidiary other than a Guarantor may merge with
any other Person if the corporation surviving the merger is the Borrower or a
Subsidiary of the Borrower and immediately after giving effect to such merger,
no Default shall have occurred and be continuing.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, make any Asset Sale, other than (i) Asset Sales the fair market value of
which, when combined with all other such Asset Sales previously made during each
Fiscal Year, does not exceed $1,000,000, and (ii) any Asset Sale in which (x)
the consideration therefor is not less than the fair market value of the related
asset (as determined in good faith by the chief financial officer of the
Borrower), (y) the consideration received therefor consists solely of cash
payable at the closing thereof and (z) after giving effect to such Asset Sale,
the aggregate fair market value of the assets disposed of in all Asset Sales in
such Fiscal Year does not exceed $2,500,000.
(c) Without limitation of the foregoing, the Borrower will not, and
will not permit its Subsidiaries to, sell, lease or otherwise transfer, directly
or indirectly, all or substantially all of the assets of the Borrower and its
Subsidiaries, taken as a whole, to any other Person.
SECTION 5.08. Use of Proceeds. The proceeds of the Term Loans will be
used by the Borrower to finance a portion of the purchase price of the Deltec
Acquisition and to refinance a portion of the approximately $80,000,000
aggregate principal amount of existing Debt under the Existing Credit Agreement.
The proceeds of the Revolving Loans will be used by the Borrower to refinance
the balance of the aggregate principal amount of existing Debt under the
Existing Credit Agreement, and to provide working capital and for general
corporate purposes. The Letters of Credit issued under this Agreement will be
issued in the ordinary course for general corporate purposes, but not to support
Debt for borrowed money. None of the proceeds of any of the foregoing will be
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U.
SECTION 5.09. Negative Pledge. Neither the Borrower nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal or face
amount not exceeding $5,000,000;
(b) any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien on any fixed asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such fixed
asset (including through capital leases), in an aggregate principal amount of
such Debt at any time outstanding not greater than $5,000,000, provided that
such Lien attaches to such fixed asset concurrently with or within 90 days after
the acquisition thereof;
(d) any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into the Borrower or a Subsidiary and
not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a subsidiary and not created in contemplation of such
acquisition.
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(g) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure any obligation in
an amount exceeding $5,000,000 and (iii) do not in the aggregate materially
detract from the value of its assets or materially impair the use thereof in the
operation of its business;
(h) Liens created in connection with Permitted Receivables Financings,
including, without limitation, Liens on proceeds in any form and bank accounts
in which any such proceeds are deposited; provided that, except for the assets
transferred pursuant to Permitted Receivables Dispositions made in connection
with such Permitted Receivables Financings, no such Lien may extend to any
assets of the Borrower or any Subsidiary;
(i) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash equivalents
subject to such Liens may at no time exceed $5,000,000;
(j) Liens created by the Loan Documents;
(k) Liens securing Debt of International Subsidiaries incurred in
compliance with Section 5.10(g); and
(l) any Lien on any inventory securing obligations (whether contingent
or matured) under trade or documentary letters of credit incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such
inventory, which such obligations do not exceed in the aggregate at any time
$2,000,000.
Notwithstanding the foregoing, no Obligor will create, assume or suffer
to exist any Lien on any Collateral other than Liens described in clause (b),
(c), (d), (e) or (g) above, or Liens described in clause (f) above relating to a
Lien described in clause (b), (c), (d), (e) or (g) above, which do not in the
aggregate materially detract from the value of the Collateral.
SECTION 5.10. Limitation on Debt. The Borrower will not, and will not
permit any of its Subsidiaries to, incur or at any time be liable with respect
to any Debt except:
(a) Debt under the Loan Documents;
(b) the Subordinated Notes and Guarantees thereof provided by
Guarantors, each such Guarantee thereof subordinated to the obligations of the
respective Guarantor under the Loan Documents on substantially the same basis as
the obligations of the Borrower under the Subordinated Notes are subordinated to
the obligations of the Borrower under the Loan Documents;
(c) Debt of the Borrower and the Guarantors (other than Debt referred
to in clauses (a) and (b) above) outstanding on the Original Closing Date not in
excess of $8,300,000 in aggregate principal amount and identified on Schedule
5.10, including the Guarantees referred to on such Schedule, and any refinancing
by the obligor with respect thereto of such Debt (and, without limitation,
renewals or extensions of such Guarantees), provided that any such refinancing
does not increase the principal amount or shorten the maturity of any payment of
principal of such Debt;
(d) Debt secured by Liens permitted by Section 5.09(c) or 5.09(l), in
an aggregate principal or obligation amount at any time outstanding not
exceeding the amount permitted pursuant to such Section 5.09(c) or 5.09(l), as
the case may be;
(e) Debt of the Guarantors owing to the Borrower or another Guarantor;
(f) Debt of the Borrower and the Guarantors not otherwise permitted by
this Section incurred after the Original Closing Date in an aggregate principal
amount at any time outstanding not to exceed $5,000,000;
(g) (i) Debt of International Subsidiaries incurred for working capital
purposes in an aggregate principal amount at any time outstanding not to exceed
$25,000,000; and (ii) Debt of International Subsidiaries outstanding on the
Original Closing Date not in excess of $8,300,000 in aggregate principal amount
and identified on Schedule 5.10, and any refinancing by the obligor of such Debt
under this clause (ii), provided that any such refinancing does not increase the
principal amount or shorten the maturity of any payment of principal of such
Debt;
(h) Guarantees by (i) the Borrower of Debt referred to in subclause (i)
of clause (g) above and (ii) Deltec of Debt of FPS Power Systems Oy Ab at any
time outstanding otherwise permitted by this Section 5.10 in an aggregate
principal amount not to exceed $8,000,000; and
(i) Debt pursuant to a Permitted Receivables Financing.
SECTION 5.11. Restricted Payments. Neither the Borrower nor any
Subsidiary will declare or make any Restricted Payment other than:
(a) any Restricted Payments required to be made by the Borrower
pursuant to the terms of employee benefit plans and stock options, in each case
as in effect on the Original Closing Date and as modified thereafter, provided
that the aggregate amount of Restricted Payments permitted by this clause (a)
shall not exceed $1,000,000 in any Fiscal Year or $3,000,000 in the aggregate
for all periods after the Original Closing Date;
(b) any regularly scheduled dividends payable on the Series G Preferred
Stock in accordance with the terms thereof; provided that both before and after
giving effect thereto no Default shall have occurred and be continuing;
(c) Restricted Payments of the type referred to in clause (i) or (ii)
of the definition of Restricted Payments (other than those referred to in
clauses (a) and (b) above), to the extent that (x) both before and after giving
effect thereto no Default shall have occurred and be continuing and (y) after
giving effect to such Restricted Payment, the aggregate amount of all such
Restricted Payments declared or made in any Fiscal Year does not exceed the sum
of (A) $500,000 plus (B) the amount of Net Cash Proceeds received by the
Borrower from the issuance of stock options and other equity in such Fiscal Year
in an amount not to exceed $500,000 in Fiscal Year 1996, $750,000 in each of
Fiscal Years 1997 and 1998 and $1,000,000 in each of Fiscal Years 1999, 2000 and
2001 (but in no event, in any Fiscal Year, greater than the amount of such Net
Cash Proceeds minus any payments thereof required under Section 2.08); and
(d) Restricted Payments of the type referred to in clause (iii) of the
definition of Restricted Payments, solely to the extent that Subordinated Notes
are tendered as payment of the exercise price of warrants issued pursuant to the
Subordinated Note Agreement and no consideration other than shares of common
stock of the Borrower are issued or paid therefor; and
(e) Restricted Payments of the type referred to in clause (iii) of the
definition of Restricted Payments (other than those referred to in clause (d)
above), to the extent that (x) both before and after giving effect thereto (I)
no Default shall have occurred and be continuing and (II) the Leverage Ratio at
such time is not greater than 3.00:1 and (y) after giving effect to such
Restricted Payment, the aggregate amount of all such Restricted Payments
declared or made in any Fiscal Year does not exceed $10,000,000.
SECTION 5.12. Investments and Other Acquisitions. Neither the
Borrower nor any Subsidiary will (a) hold, make or acquire any Restricted
Investment in any Person or (b) consummate or agree to consummate any
Acquisition, unless:
(i) immediately after any such Restricted Investment
is made or acquired or any such Acquisition is consummated or
agreed to, the sum of (A) the aggregate amount expended by the
Borrower and its Subsidiaries with respect to Acquisitions
(including the value of capital stock of the Borrower used to
make Acquisitions) after the Original Closing Date plus (B)
the aggregate net book value of all Restricted Investments
does not in the aggregate exceed the sum of (x) an amount
equal to 50% of the aggregate amount of Excess Cash Flow for
each Fiscal Year ending after the Original Closing Date (any
such incremental amount pursuant to this clause (x) to be
added on the date of receipt of the financial statements
referred to in Section 5.01 for such Fiscal Year), but in no
event more than $5,000,000 in any Fiscal Year and (y) an
additional amount equal to $3,000,000 in any Fiscal Year or
$10,000,000 for all periods after the Original Closing Date;
(ii) both before and immediately after giving effect
to such Acquisition or Restricted Investment, no Default shall
have occurred and be continuing; and
(iii) in the case of any Acquisition, the Borrower
would be in compliance with Sections 5.19 and 5.20 after the
Fixed Charge Coverage Ratio and Leverage Ratio are each
adjusted with respect to such Acquisition on the date of
consummation or proposed consummation thereof (the
"Transaction Date") as follows: in calculating Consolidated
EBITDA, Consolidated Interest Expense, Consolidated Rental
Expense and Consolidated Capital Expenditures, (1) the
incurrence of any Debt incurred in connection with such
Acquisition and the application of the proceeds therefrom
shall be assumed to have occurred on the first day of the
period of four consecutive Fiscal Quarters (or other period)
for which such amounts are required to be determined in
accordance with the definitions of Fixed Charge Coverage Ratio
and Leverage Ratio (the "Reference Period"), (2) pro forma
effect shall be given to the Acquisition (including
adjustments to operating results permitted to be made in
accordance with generally accepted accounting principles)
which occur during the Reference Period or subsequent to the
Reference Period and prior to the Transaction Date as if such
Acquisition had occurred on the first day of the Reference
Period, (3) the incurrence of any Debt during the Reference
Period or subsequent to the Reference Period and prior to the
Transaction Date and the application of the proceeds therefrom
shall be assumed to have occurred on the first day of such
Reference Period and (4) Consolidated Interest Expense
attributable to any Debt (whether existing or being incurred)
computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period
unless such Person or any of its Subsidiaries is a party to a
interest party swap or cap or similar agreement (which shall
remain in effect for the twelve month period after the
Transaction Date) which has the effect of fixing the interest
rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
SECTION 5.13. Consolidated Capital Expenditures. Consolidated Capital
Expenditures will not, for any of the fiscal periods set forth below, exceed the
amount indicated opposite such period:
Fiscal Period Amount
------------- ---------
Fiscal Year 1996 $16,000,000
Fiscal Year 1997 16,000,000
Fiscal Year 1998 17,500,000
Fiscal Year 1999 18,000,000
Fiscal Year 2000 18,500,000
Fiscal Year 2001 20,000,000
First Fiscal Quarter 2002 6,000,000
Second Fiscal Quarter 2002 6,000,000
SECTION 5.14. Sale-leaseback Transactions. Neither the Borrower nor
any of its Subsidiaries will engage in any Sale-Leaseback Transactions unless
the Borrower or such Subsidiary would be entitled, pursuant to the other
provisions of Article 5, to incur Debt with a principal amount equal to or
exceeding the Value of such Sale-Leaseback Transaction secured by a Lien on the
property to be leased (after giving similar effect to all other Sale-Leaseback
Transactions in effect at such time). For purposes of this Section, "Value"
means, with respect to a Sale-Leaseback Transaction, at any time, the amount
equal to the greater of (i) the net proceeds of the sale or transfer of the
property leased pursuant to such Sale-Leaseback Transaction and (ii) the fair
value in the opinion of the Board of Directors of the Borrower of such property
at the time of entering into such Sale-Leaseback Transaction, in either case
divided first by the number of full years of the term of the lease and then
multiplied by the number of full years of such term remaining at the time of
determination, without regard to any renewal or extension options contained in
the lease.
SECTION 5.15. Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, pay any funds to or
for the account of, make any investment (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction with,
any Affiliate except on an arms-length basis on terms at least as favorable to
the Borrower or such Subsidiary Affiliate than could have been obtained from a
third party who was not an Affiliate; provided that the foregoing provisions of
this Section shall not prohibit any such Person from declaring or paying any
lawful dividend or other payment ratably in respect of all of its capital stock
of the relevant class so long as, after giving effect thereto, no Default shall
have occurred and be continuing.
SECTION 5.16. Hedging Facilities. Not later than 30 days after the
Original Closing Date the Borrower will have entered into and thereafter
maintain in full force and effect interest rate agreements in such amounts and
on such terms as shall result in effectively limiting to a rate acceptable to
the Administrative Agent the interest cost to the Borrower of the London
Interbank Offered Rate on the Loans in an aggregate principal amount not less
than $65,000,000 for a period of two years beginning on such date, all on terms
and conditions satisfactory to the Required Lenders. The Borrower will not, and
will not permit any of its Subsidiaries to, incur any Derivatives Obligations
except for purposes of hedging and not for speculative purposes.
SECTION 5.17. Further Assurances. (a) The Borrower will, and will
cause each of the other Obligors to, at the Borrower's sole cost and expense,
do, execute, acknowledge and deliver all such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment and transfers as the
Administrative Agent shall from time to time request, which may be necessary in
the reasonable judgment of the Administrative Agent from time to time to assure,
perfect, convey, assign and transfer to the Administrative Agent the property
and rights conveyed or assigned pursuant to the Collateral Documents, or which
may facilitate the performance of the terms of the Collateral Documents, or the
filing, registering or recording of the Collateral Documents.
(b) All costs and expenses in connection with the grant of any security
interests under the Collateral Documents, including without limitation
reasonable legal fees and other reasonable costs and expenses in connection with
the granting, perfecting and maintenance of any security interests under the
Collateral Documents or the preparation, execution, delivery, recordation or
filing of documents and any other acts as the Administrative Agent may
reasonably request in connection with the grant of such security interests shall
be paid by the Borrower promptly upon demand.
(c) The Borrower will not, and will not permit any of its Subsidiaries
to, enter into or become subject to any agreement which would impair their
ability to comply, or which would purport to prohibit them from complying, with
the provisions of this Section.
(d) Substantially simultaneously with acquiring or forming any
Subsidiary or Subsidiaries, Borrower will cause such Subsidiary or Subsidiaries
(but excluding any Subsidiary which is an International Subsidiary) to become a
party hereto as a "Guarantor" and/or a party to the Security Agreement by
executing and delivering to the Administrative Agent an agreement substantially
in the form of Exhibit H hereto appropriately completed with respect to such new
Guarantor (a "Guarantor Addendum") and to cause each such Subsidiary (other than
any International Subsidiary) to become a party to one or more pledge agreements
in substance consistent with the Pledge Agreements to secure its obligations
hereunder. Within 30 days after acquiring or forming such Subsidiary or
Subsidiaries (other than any International Subsidiary), the Borrower will cause
such Subsidiary or Subsidiaries to (i) execute and deliver such other
supplements and documents creating security interests as the Administrative
Agent may specify, (ii) do all other things which may be necessary or which the
Administrative Agent may reasonably request in order to confer upon and confirm
to the Lenders the benefits of such security required to be granted and (iii)
deliver such legal opinions, certificates, evidences of corporate action or
other documents as the Administrative Agent may reasonably request, all in form
and substance satisfactory to the Administrative Agent, relating to the
satisfaction of the Borrower's obligations under this Section.
SECTION 5.18. Minimum Consolidated Net Worth. Consolidated Net Worth
will at no time be less than the sum of (i) $82,000,000 and (ii) an amount equal
to 75% of Consolidated Net Income for each Fiscal Quarter of the Borrower ending
after December 31, 1996 and on or prior to the date of determination, in each
case, for which Consolidated Net Income is positive (but with no deduction on
account of negative Consolidated Net Income for any Fiscal Quarter of the
Borrower) plus (iii) 75% of the aggregate net proceeds, including the fair
market value of property other than cash (as determined in good faith by the
Board of Directors of the Borrower), received by the Borrower from the issuance
and sale after December 31, 1996 of any capital stock of the Borrower (other
than the proceeds of any issuance and sale of any capital stock (x) to a
Subsidiary of the Borrower or (y) which is required to be redeemed, or is
redeemable at the option of the holder, at any time) or in connection with the
conversion or exchange of any Debt of the Borrower into capital stock of the
Borrower after December 31, 1996.
SECTION 5.19. Fixed Charge Coverage Ratio. As of the last day of each
Fiscal Quarter of the Borrower set forth below, the Fixed Charge Ratio will not
be less than the ratio set forth below opposite such Fiscal Quarter:
Fiscal Quarter Ratio
-------------- -----
Third Fiscal Quarter 1996 1.05:1
Fourth Fiscal Quarter 1996 1.45:1
First Fiscal Quarter 1997 1.30:1
Second Fiscal Quarter 1997 1.30:1
Third Fiscal Quarter 1997 1.35:1
Fourth Fiscal Quarter 1997 1.50:1
First Fiscal Quarter 1998 1.60:1
Second Fiscal Quarter 1998 1.70:1
Third Fiscal Quarter 1998 1.80:1
Fourth Fiscal Quarter 1998
and thereafter 2.00:1
SECTION 5.20. Leverage Ratio. As of the last day of each Fiscal
Quarter of the Borrower set forth below and at all times thereafter until the
last day of the next such Fiscal Quarter, the Leverage Ratio shall not exceed
the ratio set forth below opposite such Fiscal Quarter:
Fiscal Quarter Ratio
-------------- -----
Third Fiscal Quarter 1996 4.75:1
Fourth Fiscal Quarter 1996 4.25:1
First Fiscal Quarter 1997 4.15:1
Second Fiscal Quarter 1997 4.25:1
Third Fiscal Quarter 1997 4.00:1
Fourth Fiscal Quarter 1997 3.75:1
First Fiscal Quarter 1998 3.50:1
Second Fiscal Quarter 1998 3.25:1
Third Fiscal Quarter 1998 3.15:1
Fourth Fiscal Quarter 1998
and thereafter 3.00:1
SECTION 5.21. Amendments of Related Documents. The Borrower shall not
and shall not permit its Subsidiaries to, without the prior written consent of
the Required Lenders, modify or amend, or waive any provision or condition
contained in, any of the Deltec Acquisition Documents, the Subordinated Note
Agreement, the Subordinated Notes or the Series G Preferred Stock from the forms
of each of the foregoing heretofore delivered to the Lenders and the Agents in
any manner that could reasonably be expected to be adverse to the Lenders.
SECTION 5.22. Limitation on Restrictions Affecting Subsidiaries.
Neither the Borrower nor any of its Subsidiaries will enter into, or suffer to
exist, any agreement with any Person, other than the Loan Documents and the
Subordinated Note Indenture and guarantees with respect thereto, which prohibits
or limits the ability of any Subsidiary to (a) pay dividends or make other
distributions or pay any Debt owed to the Borrower or any other Subsidiary, (b)
make loans or advances to the Borrower or any other Subsidiary or (c) transfer
any of its properties or assets to the Borrower or any other Subsidiary,
provided that the foregoing shall not prohibit (i) such restrictions as exist
today and set forth in the agreements identified on Schedule 5.22 and (ii)
customary net worth and financial leverage tests in agreements governing Debt in
effect on the date of this Agreement of International Subsidiaries incurred and
outstanding in compliance with this Agreement.
SECTION 5.23. Designated Senior Debt. Without the consent of the
Required Lenders, the Borrower shall not designate any Debt, other than Debt
under the Loan Documents, as "Designated Senior Debt", as such term is defined
in the Subordinated Note Indenture as in effect on the Original Closing Date, or
any comparable designation that confers upon the holders of such Debt (or any
Person acting on their behalf) the right to initiate blockage periods under the
Subordinated Note Indenture.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay (i) when due any principal of any
Loan or any reimbursement obligation under any Letter of Credit or (ii) within
two Domestic Business Days after the same shall become due, any interest on any
Loan or any fees or any other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Article 5, other than those contained in Sections 5.01 through
5.06;
(c) any Obligor shall fail to observe or perform any covenant or
agreement contained in the Loan Documents (other than those covered by clause
(a) or (b) above) for 30 days after notice thereof has been given to the
Borrower by the Administrative Agent at the request of any Lender;
(d) any representation, warranty, certification or statement made by
any Obligor in any Loan Document or in any certificate, financial statement or
other document delivered pursuant to any Loan Document shall prove to have been
incorrect in any material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of any Material Financial Obligations when due or within any applicable
grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such Debt
or any Person acting on such holder's behalf to accelerate the maturity thereof;
(g) the Borrower or any Subsidiary (other than an Immaterial
Subsidiary) shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Borrower or any Subsidiary (other than an Immaterial Subsidiary) seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Borrower
or any Subsidiary under the federal bankruptcy laws as now or hereafter in
effect;
(i) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $1,000,000 which it shall have become liable
to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $1,000,000;
(j) judgments or orders for the payment of money in excess of
$3,000,000 shall be rendered against the Borrower or any Subsidiary and such
judgments or orders shall continue unsatisfied and unstayed for a period of 10
days;
(k) the Guarantee of any Guarantor under Article 9 shall for any reason
be revoked or invalidated, or otherwise cease to be in full force and effect, or
any Guarantor, or any Person on behalf of any Guarantor, shall deny or disaffirm
its obligations under such Guarantee, or any Lien created by any of the
Collateral Documents shall at any time fail to constitute a valid and (to the
extent required by the Collateral Documents) perfected Lien on any substantial
part of the Collateral purported to be subject thereto, securing the obligations
purported to be secured thereby, with the priority required by the Loan
Documents, or any Obligor shall assert any of the foregoing in writing;
(l) any person or group of persons (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 33-1/3% or more of the
outstanding shares of common stock of the Borrower; or, during any period of 12
consecutive calendar months, individuals who were directors of the Borrower on
the first day of such period shall cease to constitute a majority of the board
of directors of the Borrower; or there shall occur any "Change of Control", as
such term is defined in the Subordinated Note Indenture as in effect on the
Original Closing Date, or any similar event that permits the holders of the
Subordinated Notes (or any Person acting on their behalf) the right to
accelerate the maturity of the Subordinated Notes or demand any payment or
redemption thereof or with respect thereto;
then, and in every such event, the Administrative Agent shall (i) if requested
by Lenders having more than 50% in aggregate amount of the Commitments, by
notice to the Borrower terminate the Commitments and they shall thereupon
terminate, and (ii) if requested by Lenders holding more than 50% of the sum of
the aggregate principal amount of the Loans and the Letter of Credit
Liabilities, by notice to the Borrower declare the Loans and the Letter of
Credit Liabilities (together with accrued interest thereon) to be, and the Loans
and the Letter of Credit Liabilities shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; provided that in the case of any of the
Events of Default specified in clause 6.01(g) or 6.01(h) above with respect to
the Borrower, without any notice to the Borrower or any other act by the
Administrative Agent or the Lenders, the Commitments shall thereupon terminate
and the Loans and the Letter of Credit Liabilities (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall
give notice to the Borrower under Section 6.01 promptly upon being requested to
do so by any Lender and shall thereupon notify all the Lenders thereof. Upon
receipt by the Administrative Agent of any notice of acceleration under the
Subordinated Note Agreement, the Administrative Agent shall promptly notify the
Lenders thereof.
SECTION 6.03. Cash Cover. The Borrower agrees, in addition to the
provisions of Section 6.01 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the
Administrative Agent upon the instruction of the Lenders having more than 50% in
aggregate amount of the Revolving Commitments (or, if the Revolving Commitments
shall have been terminated, holding more than 50% of the aggregate Letter of
Credit Liabilities), pay to the Administrative Agent an amount in immediately
available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to the aggregate
amount available for drawing under all Letters of Credit then outstanding at
such time, provided that, upon the occurrence of any Event of Default specified
in Section 6.01(g) or 6.01(h) with respect to the Borrower, the Borrower shall
pay such amount forthwith without any notice or demand or any other act by any
Agent or the Lenders.
ARTICLE 7
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Administrative Agent and the Documentation Agent to
enter into and act as its agent in connection with the Collateral Documents and
to take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Agents by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto. Each Lender
hereby agrees to be bound by the provisions of the Collateral Documents and,
without limitation of the foregoing or of any other provision hereof, agrees to
the provisions set forth in Section 10 of the Share Mortgage dated as of the
Original Closing Date entered into between EEIC and the Administrative Agent
whereby EEIC pledges 66% of the stock of MPL Powerware Systems, Ltd., as though
such provisions were set forth fully herein.
SECTION 7.02. Agents and Affiliates. Each of the Agents shall
have the same rights and powers under the Loan Documents as any other Lender and
may exercise or refrain from exercising the same as though it were not the
Agent, and each Agent and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it were not an Agent.
SECTION 7.03. Action by Agents. The obligations of the Agents
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Administrative Agent shall not be required to
take any action with respect to any Default, except as expressly provided in
Article 6.
SECTION 7.04. Consultation with Experts. Each of the Agents may consult
with legal counsel (who may be counsel for any Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. Neither of the Agents nor any of
their affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Lenders or (ii)
in the absence of its own gross negligence or willful misconduct. Neither Agent
nor any of their affiliates nor any of their respective directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with the Loan Documents or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of any Obligor;
(iii) the satisfaction of any condition specified in Article 3, except receipt
of items required to be delivered to the Documentation Agent or the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of the
Loan Documents or any other instrument or writing furnished in connection
herewith. No Agent shall incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex, facsimile transmission or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Lender shall, ratably in
accordance with its Commitment, indemnify each Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with the Loan Documents or any
action taken or omitted by such indemnitees thereunder.
SECTION 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under the Loan Documents.
SECTION 7.08. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent gives notice of resignation, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent, which shall
be a commercial bank organized or licensed under the laws of the United States
of America or of any State thereof and having a combined capital and surplus of
at least $50,000,000. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent.
SECTION 7.09. Agents' Fee. The Borrower shall pay to each Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and such Agent.
SECTION 7.10. Co-Agents and Documentation Agent. The Co-Agents
referred to on the signature pages hereof and the Documentation Agent referred
to on the cover page hereof, in their respective capacities as such, shall have
no duties or obligations of any kind under the Loan Documents.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period for any Euro-Dollar Loan:
(a) the Administrative Agent is advised by the
Reference Lenders that deposits in dollars (in the applicable
amounts) are not being offered to the Reference Lenders in the
London interbank market for such Interest Period, or
(b) Lenders having 50% or more of the aggregate
principal amount of the affected Loans advise the
Administrative Agent that the London Interbank Offered Rate as
determined by the Administrative Agent will not adequately and
fairly reflect the cost to such Lenders of funding their
Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Euro-Dollar Loans shall be suspended and (ii)
each outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on
the last day of the then current Interest Period applicable thereto. Unless the
Borrower notifies the Administrative Agent at least two Domestic Business Days
before the date of any Euro-Dollar Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, on or after the Original Closing Date,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Lender (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Euro-Dollar Loans, or to continue or convert
outstanding Loans as or into Euro-Dollar Loans, shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this Section, such
Lender shall designate a different Euro-Dollar Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender. If such
notice is given, each Euro-Dollar Loan of such Lender then outstanding shall be
converted to a Base Rate Loan either (a) on the last day of the then current
Interest Period applicable to such Euro-Dollar Loan if such Lender may lawfully
continue to maintain and fund such Loan to such day or (b) immediately if such
Lender shall determine that it may not lawfully continue to maintain and fund
such Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
the Original Closing Date, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
any such requirement with respect to which such Lender is entitled to
compensation during the relevant interest period under Section 2.14), special
deposit, insurance assessment or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (or its Applicable
Lending Office) or shall impose on any Lender (or its Applicable Lending Office)
or the London interbank market any other condition affecting its Euro-Dollar
Loans or its obligations hereunder in respect of Letters of Credit, its Note or
its obligation to make Euro-Dollar Loans or issue or participate in any Letter
of Credit, and the result of any of the foregoing is to increase the cost to
such Lender (or its Applicable Lending Office) of making or maintaining any
Euro-Dollar Loan or of issuing or participating in any Letter of Credit, or to
reduce the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Lender to be material, then, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender shall have determined that, after the Original
Closing Date, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Lender (or its Parent) as a consequence of such Lender's
obligations hereunder to a level below that which such Lender (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender (or its Parent) for such reduction.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
Original Closing Date, which will entitle such Lender to compensation pursuant
to this Section and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender. A certificate of any Lender claiming compensation under this
Section and setting forth in reasonable detail its calculation of the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. Notwithstanding the foregoing
subsections (a) and (b) of this Section 8.03, the Borrower shall only be
obligated to compensate any Lender for any amount arising or accruing during (i)
any time or period commencing not more than (x) in the case of subsection (a),
six months and (y) in the case of subsection (b), three months, prior to the
date on which such Lender notifies the Administrative Agent and the Borrower
that it proposes to demand such compensation and identifies to the
Administrative Agent and the Borrower the statute, regulation or other basis
upon which the claimed compensation is or will be based and (ii) any time or
period during which, because of the retroactive application of such statute,
regulation or other basis, such Lender did not know that such amount would arise
or accrue.
SECTION 8.04. Taxes. (a) For the purposes of this Section 8.04, the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower or any Guarantor, as the case may be, pursuant to this Agreement or
under any Note, and all liabilities with respect thereto, excluding (i) in the
case of each Lender and each Agent, taxes imposed on its income, and franchise
or similar taxes imposed on it, by a jurisdiction under the laws of which such
Lender or such Agent (as the case may be) is organized or in which its principal
executive office is located or, in the case of each Lender, in which its
Applicable Lending Office is located and (ii) in the case of each Lender, any
United States withholding tax imposed on such payments but only to the extent
that such Lender is subject to United States withholding tax at the time such
Lender first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or from
the execution or delivery of, or otherwise with respect to, any Loan Document.
(b) Any and all payments by the Borrower or any Guarantor to or for the
account of any Lender or any Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
or any Guarantor shall be required by law to deduct any Taxes or Other Taxes
from any such payments, (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) such Lender or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower or any Guarantor, as the case may
be, shall make such deductions, (iii) the Borrower or such Guarantor, as the
case may be, shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Documentation Agent, at its address referred to in
Section 10.01, the original or a certified copy of a receipt evidencing payment
thereof.
(c) The Borrower agrees to indemnify each Lender and each Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by such Lender or such Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be paid within 15 days after such
Lender or such Agent (as the case may be) makes demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with Internal Revenue Service form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which exempts the Lender
from United States withholding tax or reduces the rate of withholding tax on
payments of interest for the account of such Lender or certifying that the
income receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States.
(e) For any period with respect to which a Lender has failed to provide
the Borrower or the Administrative Agent with the appropriate form pursuant to
Section 8.04(d) (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which such form originally was
required to be provided), such Lender shall not be entitled to indemnification
under Section 8.04(b) or (c) with respect to Taxes imposed by the United States;
provided that if a Lender, which is otherwise exempt from or subject to a
reduced rate of withholding tax, becomes subject to Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower or any Guarantor is required to pay additional
amounts to or for the account of any Lender pursuant to this Section, then such
Lender will change the jurisdiction of its Applicable Lending Office if, in the
judgment of such Lender, such change (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Lender.
SECTION 8.05. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Lender to make Euro-Dollar Loans, or to
convert or continue outstanding Loans into or as Euro-Dollar Loans, has
been suspended pursuant to Section 8.02 or (ii) any Lender has demanded
compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar Loans
and the Borrower shall, by at least five Euro-Dollar Business Days' prior notice
to such Lender through the Administrative Agent, have elected that the
provisions of this Section shall apply to such Lender, then, unless and until
such Lender notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Lender as (or
continued as or converted into) Euro-Dollar Loans shall instead be Base Rate
Loans (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Lenders); and
(b) after each of its Euro-Dollar Loans has been repaid (or converted
to a Base Rate Loan), all payments of principal which would otherwise be applied
to repay such Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
If such Lender notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other
Lenders.
SECTION 8.06. Substitution of Lender. If (i) the obligation of any
Lender to make Euro-Dollar Loans has been suspended pursuant to Section 8.02
or (ii) any Lender has demanded compensation under Section 8.03 or 8.04, the
Borrower shall have the right, with the assistance of the Administrative
Agent, to seek one or more mutually satisfactory substitute financial
institutions (which may be one or more of the Lenders) to purchase the Note
and assume the Commitments of such Lender.
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty. Each Guarantor hereby unconditionally
guarantees, jointly and severally with each other Guarantor, the full and
punctual payment (whether at stated maturity, upon acceleration or otherwise)
of the principal of and interest on each Note and the full amount of all Letter
of Credit Liabilities under this Agreement, and the full and punctual payment of
all other amounts payable by the Borrower or any other Obligor under the Loan
Documents, and all Hedging Obligations (as defined in the Security Agreement
of even date herewith). Upon failure by the Borrower or any other Obligor to pay
punctually any such amount, each Guarantor shall forthwith on demand pay the
amount not so paid at the place and in the manner specified in this Agreement
or the other Loan Documents.
SECTION 9.02. Guaranty Unconditional. The obligations of each
Guarantor hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Borrower
or any other Obligor under the Loan Documents, by operation of
law or otherwise;
(ii) any modification or amendment of or supplement
to the Loan Documents;
(iii) any release, impairment, non-perfection or
invalidity of any direct or indirect security for any
obligation of the Borrower or any other Obligor under the Loan
Documents;
(iv) any change in the corporate existence, structure
or ownership of the Borrower or any other Obligor, or any
insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower, any other Obligor or their
respective assets or any resulting release or discharge of any
obligation of the Borrower or any other Obligor contained in
the Loan Documents;
(v) the existence of any claim, set-off or other
rights which such Guarantor may have at any time against the
Borrower, any other Obligor, any Agent, any Lender or any
other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to
or against the Borrower or any other Obligor for any reason of
the Loan Documents, or any provision of applicable law or
regulation purporting to prohibit the payment by the Borrower
or any other Obligor of the principal of or interest on any
Note or any other amount payable by the Borrower or any other
Obligor under the Loan Documents; or
(vii) any other act or omission to act or delay of
any kind by the Borrower, any other Obligor, any Agent, any
Lender or any other Person or any other circumstance
whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the
Guarantor's obligations hereunder.
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement In
Certain Circumstances. Each Guarantor's obligations hereunder shall remain in
full force and effect until the Commitments shall have terminated and the
principal of and interest on the Notes and all other amounts payable by the
Obligors under the Loan Documents shall have been paid in full. If at any time
any payment of the principal of or interest on any Note or any other amount
payable by the Obligors under the Loan Documents is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of any Obligor or otherwise, each Guarantor's obligations hereunder with respect
to such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
SECTION 9.04. Waiver by Each Guarantor. Each Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the Borrower or any other Guarantor or any other
Person.
SECTION 9.05. Subrogation and Contribution. Each Guarantor irrevocably
waives any and all rights to which it may be entitled, by operation of law or
otherwise, upon making any payment hereunder (i) to be subrogated to the rights
of the payee against the Borrower with respect to such payment or against any
direct or indirect security therefor, or otherwise to be reimbursed, indemnified
or exonerated by or for the account of the Borrower in respect thereof or (ii)
to receive any payment, in the nature of contribution or for any other reason,
from any other Guarantor with respect to such payment.
SECTION 9.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by any Obligor under the Loan Documents is stayed
upon insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of this Agreement shall
nonetheless be payable by each Guarantor hereunder forthwith on demand by the
Agent made at the request of the requisite proportion of the Lenders specified
in Article 6 of the Agreement.
SECTION 9.07. Limit of Liability. The obligations of each Guarantor
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of any applicable
state law.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party: (a)
in the case of the Borrower or the Administrative Agent, at its address,
facsimile number or telex number set forth on the signature pages hereof, (b) in
the case of any Guarantor, in care of the Borrower, (c) in the case of any
Lender, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (d) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Administrative Agent and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (iii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
Administrative Agent or any Issuing Lender under Article 2 or Article 8 shall
not be effective until received.
SECTION 10.02. No Waivers. No failure or delay by any Agent or any
Lender in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Indemnification. (a) The Borrower shall
pay (i) all out-of-pocket expenses of the Agents (including the Syndication
Agent referred to on the cover page hereof), including fees and disbursements of
special counsel for the Administrative Agent, in connection with the preparation
and administration of the Loan Documents, any waiver or consent thereunder or
any amendment thereof or any Default or alleged Default thereunder and (ii) if
an Event of Default occurs, all out-of-pocket expenses incurred by the Agents
and each Lender, including (without duplication) the fees and disbursements of
outside counsel and the allocated cost of inside counsel, in connection with
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Agents and each Lender, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of the Loan Documents or any actual or proposed use
of proceeds of Loans hereunder; provided that no Indemnitee shall have the right
to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct.
SECTION 10.04. Sharing of Set-Offs. Each Lender agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it and any Letter of Credit Liabilities which
is greater than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest due with respect to any Note and
Letter of Credit Liabilities held by such other Lender, the Lender receiving
such proportionately greater payment shall purchase such participations in the
Notes and Letter of Credit Liabilities held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes and Letter of Credit
Liabilities held by the Lenders shall be shared by the Lenders pro rata;
provided that nothing in this Section shall impair the right of any Lender to
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of any Obligor
other than its indebtedness hereunder. Each Obligor agrees, to the fullest
extent it may effectively do so under applicable law, that any holder of a
participation in a Note or Letter of Credit Liabilities, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of such Obligor in the
amount of such participation.
SECTION 10.05. Amendments and Waivers; Release of Collateral. (a) Any
provision of this Agreement or the Notes may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the Borrower and the
Required Lenders (and, if the rights or duties of the Documentation Agent, the
Administrative Agent or an Issuing Lender are affected thereby, by such affected
Agent or Issuing Lender, as relevant); provided that no such amendment or waiver
shall:
(i) unless signed by all the Lenders with a Term
Commitment, increase or decrease the Term Commitments (except
for a ratable decrease in all the Term Commitments), subject
any such Lender to any additional obligation, or postpone the
date fixed for the scheduled termination of any Term
Commitment;
(ii) unless signed by all Lenders holding Term Loans,
reduce the principal of or rate of interest on any Term Loans,
postpone the date fixed for any scheduled payment of principal
of or interest on any Term Loans, or decrease the aggregate
amount by which Term Loans are required to be repaid on any
date scheduled pursuant to Section 2.04(b) or postpone any
date for such repayment;
(iii) unless signed by all Lenders with a Revolving
Commitment, increase or decrease any Revolving Commitment
(except for a ratable decrease in all the Revolving
Commitments), subject any such Lender to any additional
obligation, postpone the date fixed for any scheduled
reduction or termination of any Revolving Commitment, reduce
the principal of or rate of interest on any Revolving Loan or
the amount to be reimbursed in respect of any Letter of Credit
or any interest thereon, extend any Letter of Credit expiry
date beyond the Maturity Date, or postpone the date fixed for
scheduled payment of principal of, and dates fixed for payment
of interest on, any Revolving Loan;
(iv) unless signed by all the Lenders, postpone the
date fixed for any payment of any fees hereunder or release
any Guarantor from its obligations hereunder;
(v) unless signed by the Swing Lender and each other
Lender affected thereby, increase the Swing Loan Commitment,
postpone the date fixed for the termination of the Swing Loan
Commitment or otherwise affect any of its rights or
obligations hereunder; and
(vi) unless signed by all the Lenders, change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes and the Letter of Credit
Liabilities, or the number of Lenders, which shall be required
for the Lenders or any of them to take any action under this
Section or any other provision of this Agreement.
Any provision of the Collateral Documents may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the relevant Obligor
or Obligors and the Administrative Agent with the consent of the Required
Lenders; provided that no such amendment or waiver shall, unless signed by all
the Lenders, effect or permit a release of all or substantially all of the
Collateral.
(b) Notwithstanding anything to the contrary in the Collateral
Documents, Collateral shall be released from the Lien of the Collateral
Documents from time to time as necessary to effect any sale or pledge of assets
permitted by the Loan Documents. The Administrative Agent shall, at the sole
expense of the Borrower, execute and deliver all release documents reasonably
requested to evidence any release pursuant to this subsection (b).
SECTION 10.06. Successors and Assigns.(a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Lenders.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans and Letter of Credit Liabilities. In the event of any
such grant by a Lender of a participating interest to a Participant, whether or
not upon notice to the Borrower and the Agents, such Lender shall remain
responsible for the performance of its obligations hereunder, and the Borrower,
the Issuing Lenders and the Agents shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Lender will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii), (iii) or
(iv) of, or in the proviso in the last sentence of, Section 10.05(a) without the
consent of the Participant. The Borrower agrees that each Participant shall, to
the extent provided in its participation agreement, be entitled to the benefits
of Section 2.14 or Article 8 with respect to its participating interest. An
assignment or other transfer which is not permitted by subsection (c) or (d)
below shall be given effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this subsection (b).
(c) Any Lender may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a pro rata part of all, of its rights
and obligations under this Agreement with respect to either:
(i) its outstanding Term Loans, or
(ii) its Revolving Commitment and outstanding
Revolving Loans and Letter of Credit Liabilities,
and such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit F
hereto executed by such Assignee and such transferor Lender, with (and subject
to) the subscribed consent of the Borrower and the Administrative Agent and, if
such assignment includes amounts pursuant to clause (ii) above, the Issuing
Lenders and Swing Lender, none of which consents shall be unreasonably withheld;
provided that:
(A) if an Assignee is an affiliate of such transferor
Lender or was a Lender immediately prior to such assignment,
no such consent of the Borrower shall be required; and
(B) if such transferor Lender assigns a part (but not
all) of its Term Loans or of its Revolving Commitment and
outstanding Revolving Loans, then, (I) unless the Assignee is
an affiliate of such transferor Lender or was a Lender
immediately prior to such assignment, the sum of (x) the
aggregate outstanding principal amount of Term Loans (if any)
and (y) the amount of Revolving Commitment (or, if the
Revolving Commitments have been terminated, the aggregate
outstanding principal amount of Revolving Loans) (if any)
assigned to such Assignee shall be at least $5,000,000, and,
(II) after giving effect to such partial assignment, the sum
of (x) the aggregate outstanding principal amount of Term
Loans (if any) and (y) the amount of Revolving Commitment (or,
if the Revolving Commitments have been terminated, the
aggregate outstanding principal amount of Revolving Loans) (if
any) retained by the transferor Lender shall be at least
$5,000,000.
Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Lender of an amount equal to the purchase price agreed between
such transferor Lender and such Assignee, such Assignee shall be a Lender party
to this Agreement and shall have all the rights and obligations of a Lender with
a Commitment as set forth in such instrument of assumption, and the transferor
Lender shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to the
Assignee. In connection with any such assignment, the transferor Lender shall
pay to the Administrative Agent an administrative fee for processing such
assignment in the amount of $3,500. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall deliver to
the Borrower and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 8.04.
(d) Any Lender may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Lender's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Lender to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 10.07. Collateral. Each of the Lenders represents to the
Agents and each of the other Lenders that it in good faith is not relying upon
any "margin stock" (as defined in Regulation U) as collateral in the extension
or maintenance of the credit provided for in this Agreement.
SECTION 10.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Obligor irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
SECTION 10.09. Counterparts; Integration. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 10.10. Waiver by Jury Trial. EACH OF THE BORROWER, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
EXIDE ELECTRONICS GROUP, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
GUARANTORS
EXIDE ELECTRONICS CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
EXIDE ELECTRONICS INTERNATIONAL CORP.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
INTERNATIONAL POWER MACHINES CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
DELTEC POWER SYSTEMS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
LECTRO PRODUCTS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
DATATRAX ACQUISITION CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
EXIDE ELECTRONICS USA HOLDINGS CORP.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
DELTEC ELECTRONICS CORP.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
LORTEC POWER SYSTEMS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 919/870-3100
AGENTS
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
NATIONSBANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CO-AGENTS
ABN AMRO BANK, N.V.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA ILLINOIS
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
OTHER LENDERS
BRANCH BANKING & TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
BANQUE PARIBAS
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS ATLANTA BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
LTCB TRUST COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
SOCIETE GENERALE
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BANK LTD, NEW YORK BRANCH
By /s/ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED, ATLANTA AGENCY
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Manager
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE INCOME TRUST
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED, ATLANTA AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Joint General Manager
THE YASUDA TRUST & BANKING CO., LTD., NEW YORK BRANCH
By /s/ Prince ▇. ▇▇▇▇▇▇▇▇
Title: First Vice President
NON-CONTINUING LENDERS
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Title: Senior Vice President
SOUTHERN PACIFIC THRIFT & LOAN ASSOCIATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President & Manager
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent, Issuing Lender and
Swing Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONSBANK, N.A., as Documentation Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
Address: NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COMMITMENT SCHEDULE
------------------------------------------ -------------------------------- ---------------------------------
Lenders Revolving Commitments Term Loans
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Administrative Agent
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
▇▇▇▇▇▇ Guaranty Trust Company of $9,926,470.59 $3,573,529.41
New York
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Documentation Agent
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
NationsBank, N.A. $9,926,470.59 $3,573,529.41
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Co-Agents
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
ABN AMRO Bank, N.V. $9,558,823.53 $3,441,176.47
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Bank of America Illinois $9,558,823.53 $3,441,176.47
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
First Union National Bank of North $9,558,823.53 $3,441,176.47
Carolina
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Other Lenders
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Branch Banking & Trust Company $9,558,823.53 $3,441,176.47
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Banque Paribas $9,007,352.94 $3,242,647.06
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
COMMITMENT SCHEDULE (CONT.)
------------------------------------------ -------------------------------- ---------------------------------
Lenders Revolving Commitments Term Loans
------------------------------------------ -------------------------------- ---------------------------------
Credit Lyonnais New York Branch and $9,007,352.94 $3,242,647.06
Credit Lyonnais Atlanta Branch
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
LTCB Trust Company $9,007,352.94 $3,242,647.06
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Societe Generale $9,007,352.94 $3,242,647.06
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
▇▇▇▇▇▇ Bank Ltd $6,617,647.06 $2,382,352.94
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
The Fuji Bank, Limited, Atlanta Agency $6,617,647.06 $2,382,352.94
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
▇▇▇ ▇▇▇▇▇▇ American Capital Prime Rate $6,617,647.06 $2,382,352.94
Income Trust
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Bank of Tokyo-Mitsubishi Trust Company $3,676,470.59 $1,323,529.41
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
The Dai-Ichi Kangyo Bank, Limited, $3,676,470.59 $1,323,529.41
Atlanta Agency
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
The Yasuda Trust & Banking Co., Ltd., $3,676,470.59 $1,323,529.41
New York Branch
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Non-Continuing Lenders
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Banque Francaise Du Commerce Exterieur $0.00 $0.00
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
The Mitsubishi Trust and Banking $0.00 $0.00
Corporation
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
Southern Pacific Thrift & Loan $0.00 $0.00
Association
------------------------------------------ -------------------------------- ---------------------------------
------------------------------------------ -------------------------------- ---------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. $0.00 $0.00
------------------------------------------ -------------------------------- ---------------------------------
--------------------------------------------------------------------------------
PRICING SCHEDULE
--------------------------------------------------------------------------------
Each of "Euro-Dollar Margin", "Base Rate Margin", "Letter of Credit
Fee Rate" and "Commitment Fee Rate" means, for any date, the rates set forth
below in the row opposite such term and in the column corresponding to the
"Pricing Level" that applies at such date:
--------------------------------------------------------------------------------------------------
Level I ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Euro-Dollar 0.45% 0.625% 0.875% 1.00% 1.25% 1.50%
Margin
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Letter of 0.45% 0.625% 0.875% 1.00% 1.25% 1.50%
Credit Fee
Rate
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Base Rate 0% 0% 0% 0% 0.25% 0.50%
Margin
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
Commitment 0.15% 0.20% 0.25% 0.25% 0.30% 0.375%
Fee Rate
--------------------------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings:
"Applicable Leverage Ratio" means, for any day, the Leverage Ratio as
at the last day of the Fiscal Quarter of the Borrower most recently ended prior
to such date for which the Borrower has delivered financial statements pursuant
to Section 5.01(a) or 5.01(b), as the case may be; provided that if the Borrower
shall fail to timely deliver the financial statements required to be delivered
by it pursuant to Section 5.01(a) or 5.01(b), as the case may be, the Applicable
Leverage Ratio for each date from and including the date on which such
statements are required to be delivered to but excluding the date on which such
statements are delivered shall be deemed to be greater than 4.0.
"Level I Pricing" applies at any date if the Applicable Leverage Ratio
for such date is less than 2.0.
"Level II Pricing" applies at any date if the Applicable Leverage Ratio
for such date is greater than or equal to 2.0 and less than 2.5.
"Level III Pricing" applies at any date if the Applicable Leverage
Ratio for such date is greater than or equal to 2.5 and less than 3.0.
"Level IV Pricing" applies at any date if the Applicable Leverage Ratio
for such date is greater or equal to 3.0 and less than 3.5.
"Level V Pricing" applies at any date if the Applicable Leverage Ratio
for such date is greater than or equal to 3.5 and less than 4.0.
"Level VI Pricing" applies at any date if the Applicable Leverage Ratio
for such date is greater than or equal to 4.0.
"Pricing Level" refers to the determination of which of Level I, Level
II, Level III, Level IV, Level V or Level VI Pricing applies at any date.
SCHEDULE 1:
Existing Letters of Credit
------------------------------- ---------------------- ------------------------ ------------------------------
ISSUING LENDER ORIGINAL ISSUE DATE MATURITY DATE AMOUNT
------------------------------- ---------------------- ------------------------ ------------------------------
------------------------------- ---------------------- ------------------------ ------------------------------
First Union National Bank of 5/25/95 6/1/96 $230,999
North Carolina ("FUNB")
------------------------------- ---------------------- ------------------------ ------------------------------
------------------------------- ---------------------- ------------------------ ------------------------------
FUNB 5/25/95 6/1/96 $69,001
------------------------------- ---------------------- ------------------------ ------------------------------
------------------------------- ---------------------- ------------------------ ------------------------------
FUNB 5/24/93 9/1/97 $49,652
------------------------------- ---------------------- ------------------------ ------------------------------
------------------------------- ---------------------- ------------------------ ------------------------------
FUNB 7/8/92 6/26/96 $32,400
------------------------------- ---------------------- ------------------------ ------------------------------
SCHEDULE 2:
Assigning Lenders
------------------------------------- ------------------- -------------------- --------------------
Assigning Lenders Term Loan Revolving Revolving Loans
Commitment
------------------------------------- ------------------- -------------------- --------------------
------------------------------------- ------------------- -------------------- --------------------
Other Lenders
------------------------------------- ------------------- -------------------- --------------------
------------------------------------- ------------------- -------------------- --------------------
▇▇▇▇▇▇ Bank Ltd $2,382,352.94 $6,617,647.06 $3,600,000.00
------------------------------------- ------------------- -------------------- --------------------
------------------------------------- ------------------- -------------------- --------------------
Non-Continuing Lenders
------------------------------------- ------------------- -------------------- --------------------
------------------------------------- ------------------- -------------------- --------------------
Banque Francaise Du Commerce $0.00 $0.00 $0.00
Exterieur
------------------------------------- ------------------- -------------------- --------------------
------------------------------------- ------------------- -------------------- --------------------
The Mitsubishi Trust and Banking $0.00 $0.00 $0.00
Corporation
------------------------------------- ------------------- -------------------- --------------------
------------------------------------- ------------------- -------------------- --------------------
Southern Pacific Thrift & Loan $0.00 $0.00 $0.00
Association
------------------------------------- ------------------- -------------------- --------------------
------------------------------------- ------------------- -------------------- --------------------
The Bank of Tokyo-Mitsubishi, Ltd. $0.00 $0.00 $0.00
------------------------------------- ------------------- -------------------- --------------------
SCHEDULE 3:
Assuming Lenders
---------------------------------------------- -------------------- -------------------- --------------------
Assuming Lenders Term Loan Revolving Revolving Loans
Commitment
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Administrative Agent
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
▇▇▇▇▇▇ Guaranty Trust Company of New York $3,573,529.41 $9,926,470.59 $5,400,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Documentation Agent
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
NationsBank, N.A. $3,573,529.41 $9,926,470.59 $5,400,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Co-Agents
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
ABN AMRO Bank, N.V. $3,441,176.47 $9,558,823.53 $5,200,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Bank of America Illinois $3,441,176.47 $9,558,823.53 $5,200,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
First Union National Bank of North Carolina $3,441,176.47 $9,558,823.53 $5,200,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Other Lenders
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Branch Banking & Trust Company $3,441,176.47 $9,558,823.53 $5,200,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Banque Paribas $3,242,647.06 $9,007,352.94 $4,900,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Credit Lyonnais New York Branch and Credit $3,242,647.06 $9,007,352.94 $4,900,000.00
Lyonnais Atlanta Branch
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
LTCB Trust Company $3,242,647.06 $9,007,352.94 $4,900,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Societe Generale $3,242,647.06 $9,007,352.94 $4,900,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
SCHEDULE 3: (CONT.)
Assuming Lenders
---------------------------------------------- -------------------- -------------------- --------------------
Assuming Lenders Term Loan Revolving Revolving Loans
Commitment
---------------------------------------------- -------------------- -------------------- --------------------
The Fuji Bank, Limited, Atlanta Agency $2,382,352.94 $6,617,647.06 $3,600,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
▇▇▇ ▇▇▇▇▇▇ American Capital Prime Rate $2,382,352.94 $6,617,647.06 $3,600,000.00
Income Trust
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
Bank of Tokyo-Mitsubishi Trust Company $1,323,529.41 $3,676,470.59 $2,000,000.00
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
The Dai-Ichi Kangyo Bank, Limited, Atlanta $1,323,529.41 $3,676,470.59 $2,000,000.00
Agency
---------------------------------------------- -------------------- -------------------- --------------------
---------------------------------------------- -------------------- -------------------- --------------------
The Yasuda Trust & Banking Co., Ltd., New $1,323,529.41 $3,676,470.59 $2,000,000.00
York Branch
---------------------------------------------- -------------------- -------------------- --------------------
CERTAIN PAYMENTS ON THE AMENDMENT EFFECTIVE DATE
Part 1: Amount to be Paid by Assuming Lenders
------------------------------------------------------- --------------------- -----------------------
Assuming Lenders Term Loan Revolving Loans
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Administrative Agent
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
▇▇▇▇▇▇ Guaranty Trust Company of New York $294,959.74 $445,714.80
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Documentation Agent
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
NationsBank, N.A. $359,243.32 $542,856.57
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Co-Agents
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
ABN AMRO Bank, N.V. $226,890.37 $342,856.58
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Bank of America Illinois $194,747.60 $294,285.54
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
First Union National Bank of North Carolina $194,747.77 $294,285.54
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Other Lenders
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Branch Banking & Trust Company $869,747.60 $1,314,285.54
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Banque Paribas $671,218.20 $1,014,285.53
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Credit Lyonnais New York Branch and Credit Lyonnais $671,218.20 $1,014,285.53
Atlanta Branch
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
LTCB Trust Company $671,218.20 $1,014,285.53
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Societe Generale $671,218.20 $1,014,285.53
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
CERTAIN PAYMENTS ON THE AMENDMENT EFFECTIVE DATE (CONT.)
Part 1: Amount to be Paid by Assuming Lenders
------------------------------------------------------- --------------------- -----------------------
Assuming Lenders Term Loan Revolving Loans
------------------------------------------------------- --------------------- -----------------------
The Fuji Bank, Limited, Atlanta Agency $1,096,639.05 $1,657,143.45
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
▇▇▇ ▇▇▇▇▇▇ American Capital Prime Rate Income Trust $582,352.94 $880,000.00
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
Bank of Tokyo-Mitsubishi Trust Company $1,323,529.41 $2,000,000.00
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
The Dai-Ichi Kangyo Bank, Limited, Atlanta Agency $37,815.52 $57,143.45
------------------------------------------------------- --------------------- -----------------------
------------------------------------------------------- --------------------- -----------------------
The Yasuda Trust & Banking Co., Ltd., New York Branch $37,815.52 $57,143.45
------------------------------------------------------- --------------------- -----------------------
Part 2: Amount to be Received by Assigning Lenders
---------------------------------------------------- --------------------- -----------------------
Assigning Lenders Term Loan Revolving Loans
---------------------------------------------------- --------------------- -----------------------
---------------------------------------------------- --------------------- -----------------------
Other Lenders
---------------------------------------------------- --------------------- -----------------------
---------------------------------------------------- --------------------- -----------------------
▇▇▇▇▇▇ Bank Ltd $189,075.92 $285,714.47
---------------------------------------------------- --------------------- -----------------------
---------------------------------------------------- --------------------- -----------------------
Non-Continuing Lenders
---------------------------------------------------- --------------------- -----------------------
---------------------------------------------------- --------------------- -----------------------
Banque Francaise Du Commerce Exterieur $2,057,142.96 $3,108,571.58
---------------------------------------------------- --------------------- -----------------------
---------------------------------------------------- --------------------- -----------------------
The Mitsubishi Trust and Banking Corporation $2,571,428.86 $3,885,714.47
---------------------------------------------------- --------------------- -----------------------
---------------------------------------------------- --------------------- -----------------------
Southern Pacific Thrift & Loan Association $1,800,000.00 $2,720,000.00
---------------------------------------------------- --------------------- -----------------------
---------------------------------------------------- --------------------- -----------------------
The Bank of Tokyo-Mitsubishi, Ltd. $1,285,713.89 $1,942,856.55
---------------------------------------------------- --------------------- -----------------------
SCHEDULE 4.05:
Litigation
On August 21, 1995, a case entitled National Broadcasting Company, Inc.
and CNBC, Inc. vs. International Power Machine/LorTec Systems, Inc. et al, as
filed in the Supreme Court of New York, New York County. The plaintiffs allege
that International Power Machines Corporation ("IPM") negligently manufactured
and installed an uninterruptible power supply product that caused them property
and compensatory damages when the equipment malfunctioned during the
installation of the product by third-party contractors. The plaintiffs included
seven causes of action, each of which seeks damages in the amount of $1.1
million. Three of those causes of action also seek $3.0 million in punitive
damages. Claims of this nature are generally covered by the Borrower's insurance
and its insurer has accepted general defense of the matter. The insurer has
notified the Borrower that while claims based on IPM's negligent manufacture or
design are covered by the insurance policy, damages, if any, caused by IPM's
intentional or careless decision to install a known defective and dangerous
product would be subject to certain exclusions under the policy. While discovery
is at an early stage, the Borrower believes at this time, based on the advise of
its defense counsel, that no evidence has yet been presented that supports any
allegation of intentional or careless conduct. IPM also believes that is has
meritorious defenses and counter-claims against the third-party co-defendants
who IPM alleges defectively installed the product. The Borrower believes that
the final outcome of this matter will not have a material adverse effect on the
business or the financial position of the Borrower and its subsidiaries taken as
a whole.
SCHEDULE 5.10:
Existing Debt of the Borrower and the Guarantors
1. Revolving Credit Facility for up to FF 25,000,000 made to Exide Electronics
S.A. by ABN-AMRO Bank N.V., guaranteed by Exide Electronics Corporation.
2. Working Capital Loan for DEM 2,000,000, made to Exide Electronics
International G.m.b.H. by NBD Bank, guaranteed by Exide Electronics Corporation.
3. Revolving Credit Facility for up to BP 3,350,000, made to MPL Powerware
Systems Limited by NationsBank, N.A., guaranteed by Exide Electronics Group,
Inc., Exide Electronics Corporation and Exide Electronics International Corp.
4. Revolving Credit Facility made to Exide Electronics Canada Inc. by Bank of
Montreal for $2,500,000, guaranteed by Exide Electronics Group, Inc.
5. Promissory Note from Exide Electronics Group, Inc., to MasTec, Inc. in the
original principal amount of $450,000.
6. Equipment Loan from Associates Commercial Corporation to Lectro Products,
Inc. in the original principal amount of $393,448.86.
7. Tekes government loan to FPS Power Systems Oy Ab granted as support for
research and development projects in the original principal amount of 5,500,000
Finnish Marks.
SCHEDULE 5.22
Existing Restrictions Affecting Subsidiaries
Such restrictions as exist on the Amendment Effective Date contained in the
documents that evidence and/or govern the credit facilities set forth in
Schedule 5.10.
EXHIBITS
EXHIBIT A
New York, New York
___________ __, 199_
NOTE
For value received, EXIDE ELECTRONICS GROUP, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
______________________ (the "Lender"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Lender to the
Borrower pursuant to the Credit Agreement referred to below on the maturity date
and from time to time on earlier repayment dates referred to in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of ▇▇▇▇▇▇ Guaranty Trust Company of New York, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
originally dated as of March 13, 1996 and amended and restated as of April __,
1997 among the Borrower, the Guarantors party thereto, the lenders listed on the
signature pages thereof, the issuing lenders party thereto, ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Administrative Agent and NationsBank, N.A., as
Documentation Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
The payment in full of the principal and interest on this note
has, pursuant to the provisions of the Credit Agreement, been unconditionally
guaranteed by the Guarantors referred to therein.
EXIDE ELECTRONICS GROUP, INC.
By____________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount Type Amount of
of of Principal Maturity Notation
Date Loan Loan Repaid Date Made by
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT B
SECURITY AGREEMENT
EXHIBIT C
PLEDGE AGREEMENT
OPINION OF
COUNSEL FOR THE OBLIGORS
April __, 1997
To the Lenders and the Administrative Agent
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company of New York
as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen and Ladies:
We have acted as counsel for Exide Electronics Group, Inc., a
Delaware corporation ("Borrower") and Exide Electronics Corporation, a Delaware
corporation, Exide Electronics International Corp., a Delaware corporation,
International Power Machines Corporation, a Delaware corporation, and [other
Guarantors], (collectively, the "Guarantors" and together with Borrower, the
"Obligors"), in connection with (i) the Credit Agreement originally dated as of
March 13, 1996 and amended and restated as of April __, 1997 (the "Credit
Agreement") among Borrower, the Guarantors, the lenders listed on the signature
pages thereof (including any such Lender in its capacity as Issuing Lender, as
defined therein, the "Lenders"), Bank of America Illinois as Documentation Agent
for the Lenders and ▇▇▇▇▇▇ Guaranty Trust Company of New York as Administrative
Agent for the Lenders (the "Agents") and (ii) the Notes (the documents referred
to in clauses (i) and (ii) are referred to herein collectively as the "Loan
Documents"). Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. [Each of the] Obligors is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware,
and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
2. The execution, delivery and performance by each Obligor of the
Loan Documents to which it is a party are within the corporate powers of such
Obligor, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of such Obligor or of any agreement, judgment, injunction, order, decree or
other instrument binding upon such Obligor or any of its Subsidiaries or result
in the creation or imposition of any Lien (other than Liens under the Loan
Documents (as such term is defined in the Credit Agreement)) on any asset of
such Obligor or any of its Subsidiaries.
3. The Loan Documents (other than the Notes) to which the Borrower
is a party constitute valid and binding agreements of the Borrower and each
Note, when executed and delivered in accordance with this Agreement, will
constitute a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms except (i) as may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) as rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. The Loan Documents to
which each Guarantor is a party constitute valid and binding agreements of such
Guarantor, in each case enforceable against the Borrower in accordance with
their respective terms except (i) as may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) as rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
4. [Except as set forth on Schedule 4.05,] there is no action,
suit or proceeding pending against, or to the knowledge of the Borrower
threatened against or affecting, the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official in which
there is a reasonable possibility of an adverse decision which could materially
adversely affect the business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole, or which in any manner draws into question the validity
or enforceability of the Loan Documents.
5. The Obligations under the Credit Agreement and the Notes
constitute "Secured Obligations" as defined in the Security Agreement and the
Pledge Agreement.
6. None of the Agents or the Lenders is required to pay any tax or
be qualified to do business or file any designation for service of process or
file any reports in the State of [North Carolina] or comply with any statutory
or regulatory rule or requirement applicable only to financial institutions
chartered or qualified to do business in the State of [North Carolina] solely by
reason of its execution and delivery or acceptance of the Loan Documents or by
reason of its participation in any of the transactions under or contemplated by
the Loan Documents, including, without limitation, the making of any Loan, and
the purchase and holding of any Note contemplated thereby, and the making and
receipt of any payments pursuant thereto, and the validity and enforceability of
the Loan Documents will not be affected by any failure to so qualify or file.
7. No taxes or other charges, including, without limitation,
intangible, documentary, stamp, mortgage, transfer or recording taxes or similar
charges, are payable to the State of [North Carolina] or to any jurisdiction
therein on account of the execution, delivery or ownership of the Loan Documents
or the creation of the indebtedness (including, without limitation, the Loans
and the indebtedness evidenced by the Notes) evidenced or secured thereby.
8. The choice of New York law to govern the Loan Documents in
which such choice is stipulated is a valid and effective choice of law under the
laws of the State of [North Carolina] and adherence to existing judicial
precedents would require a court sitting in the State of [North Carolina] to
abide by such choice of law.
[To the extent that any of the foregoing opinions concerns a
matter of New York law, we have assumed that the laws of the State of New York
are identical to the laws of the State of North Carolina in all relevant
respects.]
Very truly yours,
OPINION OF
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
SPECIAL COUNSEL FOR THE AGENTS
________________, 199_
To the Lenders and the Agents
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") originally dated as of March 13, 1996 and amended and
restated as of April __, 1997 among the Exide Electronics Group, Inc. (the
"Borrower"), the Guarantors party thereto, the lenders listed on the signature
pages thereof (the "Lenders"), the issuing lenders party thereto, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent and NationsBank,
N.A., as Documentation Agent (the "Agents"), and have acted as special counsel
for the Agents for the purpose of rendering this opinion pursuant to Section
3.01(e) of the Credit Agreement. Terms defined in the Credit Agreement are used
herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Borrower of the
Credit Agreement and of the Notes are within the Borrower's corporate powers and
have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement
of the Borrower and each Note constitutes a valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware. In giving the foregoing opinion, we express no opinion as to
the effect (if any) of any law of any jurisdiction (except the State of New
York) in which any Lender is located which limits the rate of interest that such
Lender may charge or collect.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without our prior written consent.
Very truly yours,
OPINION OF SPECIAL COUNSEL
FOR THE AGENT
________________, 199_
To the Lenders and the Agents
Referred to Below
c/▇ ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
[To come -- negotiated separately with each foreign
counsel.]
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among {NAME OF ASSIGNOR}
(the "Assignor"), {NAME OF ASSIGNEE} (the "Assignee"), EXIDE ELECTRONICS GROUP,
INC. (the "Borrower") and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent (the "Agent").
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement originally dated as of March 13,
1996 and amended and restated as of April __, 1997 (the "Credit Agreement")
among the Borrower, the Guarantors party thereto, the Lenders party thereto, as
Lenders, the issuing lenders party thereto, ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as Administrative Agent and NationsBank, N.A., as Documentation Agent;
WHEREAS, Term Loans made to the Borrower by the Assignor under the
Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof;
WHEREAS, as provided under the Credit Agreement, the Assignor has
a Revolving Commitment in the amount of $_______________, under which the
Assignor has outstanding Revolving Loans in the aggregate amount of $___________
at the date hereof;
[WHEREAS, the Assignor proposes to assign to the Assignee all of
the rights of the Assignor under the Credit Agreement in respect of a pro-rata
portion of each of its Term Loans in an amount equal to $__________ (the "Term
Assigned Amount"), and the Assignee proposes to accept such assignment of such
rights and assume the corresponding obligations from the Assignor;]
[WHEREAS, the Assignor proposes to assign to the Assignee all of
the rights of the Assignor under the Credit Agreement in respect of a portion of
its Revolving Commitment in an amount equal to $__________ (the "Revolving
Commitment Assigned Amount"), together with a corresponding portion of each of
its Revolving Loans, and the Assignee proposes to accept such assignment of such
rights and assume the corresponding obligations from the Assignor;]
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not o therwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. Assignment. [The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Credit Agreement with
respect to its Term Loans to the extent of the Term Assigned Amount, and the
Assignee hereby accepts such assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement to the extent of the Term
Assigned Amount, including the purchase from the Assignor of a pro-rata portion
of the principal amount of each of the Term Loans of the Assignor outstanding at
the date hereof.] [The Assignor hereby assigns and sells to the Assignee all of
the rights of the Assignor under the Credit Agreement with respect to its
Revolving Commitment to the extent of the Revolving Commitment Assigned Amount,
and the Assignee hereby accepts such assignment from the Assignor and assumes
all of the obligations of the Assignor under the Credit Agreement to the extent
of the Revolving Commitment Assigned Amount, including the purchase from the
Assignor of a pro-rata portion of the principal amount of each Revolving Loan of
the Assignor outstanding at the date hereof.] Upon the execution and delivery
hereof by the Assignor, the Assignee, the Borrower, the Administrative Agent [,
each Issuing Lender and the Swing Lender] and the payment of the amounts
specified in Section 3 required to be paid on the date hereof [(i) the Assignee
shall, as of the date hereof, succeed to the rights and be obligated to perform
the obligations of a Lender under the Credit Agreement with outstanding Term
Loans in an aggregate amount equal to the Term Assigned Amount, [(ii) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated to
perform the obligations of a Lender under the Credit Agreement with a Revolving
Commitment in an amount equal to the Revolving Commitment Assigned Amount, and
(iii) the Revolving Commitment of the Assignor shall, as of the date hereof, be
reduced by a like amount and the Assignor released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee]. The assignment provided for herein shall be without recourse to the
Assignor.
SECTION 3. Payments. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount heretofore agreed between them.1 It
is understood that commitment and/or facility fees accrued to the date hereof
are for the account of the Assignor and such fees accruing from and including
the date hereof are for the account of the Assignee. Each of the Assignor and
the Assignee hereby agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Borrower, the Administrative Agent and
the Issuing Lenders. This Agreement is conditioned upon the consent of the
Borrower, the Administrative Agent and each Issuing Lender pursuant to Section
10.06(c) of the Credit Agreement. The execution of this Agreement by the
Borrower, the Administrative Agent and each Issuing Lender is evidence of this
consent. Pursuant to Section 10.06(c), the Borrower agrees to execute and
deliver a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein and the Assignor agrees to provide to the
Borrower the Note so assigned marked cancelled.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of any
Obligor, or the validity and enforceability of the obligations of any Obligor in
respect of the Credit Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Obligors.
SECTION 6. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
1 Amount should combine principal together with accrued interest
and breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By_________________________
Name:
Title:
[NAME OF ASSIGNEE]
By__________________________
Name:
Title:
EXIDE ELECTRONICS GROUP, INC.
By__________________________
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By__________________________
Name:
Title:
[ISSUING LENDER(S)], as Issuing Lender
By__________________________
Name:
Title:
FORM OF BORROWING BASE CERTIFICATE
I, ________________, the ____________ of EXIDE ELECTRONICS GROUP, INC.
(the "Borrower"), DO HEREBY CERTIFY, pursuant to the Credit Agreement originally
dated as of March 13, 1996 and amended and restated as of April __, 1997 (as
amended from time to time, the "Credit Agreement") among the Borrower, the
Guarantors party thereto, the Lenders referred to therein, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Administrative Agent and NationsBank, N.A., as
Documentation Agent, that attached hereto as Exhibit A is a true and accurate
calculation of the Borrowing Base of Borrower as of __________, 19__, determined
in accordance with the requirements of the Credit Agreement.
Capitalized terms used herein and not otherwise defined herein have
the meanings assigned to them in the Credit Agreement.
IN WITNESS WHEREOF, I have signed this certificate as of this ___ day
of ____________, 19__.
--------------------------
Name:
Title:
Exhibit A
to
BORROWING BASE CERTIFICATE
(all numbers in thousands)
As at ____________, 19__
************************************************************
ACCOUNTS RECEIVABLE
Gross Accounts Receivable of the Borrower
and its Consolidated Subsidiaries ________
Less:
(a) Receivables for which have
been established a contra
account, but only to the
extent of such account ________
(b) Receivables subject to a Lien
pursuant to a Permitted
Receivables Financing ________
(c) Receivables against which a
reserve has been taken ________
Total Eligible Receivables $_________
ELIGIBLE RECEIVABLES $________ X 70% = _________
---------
INVENTORY
Value (determined
on a basis consistent
with that used in the
preparation of the financial
statements referred to in
Section 4.04(a) of the Credit
Agreement) of all
Inventory owned by the
Borrower and its Consolidated
Subsidiaries _________
Less:
(a) Inventory that is subject
to a Lien (other than
Liens created pursuant to
the Loan Documents) _________
(b) Inventory against which
a reserve has been taken _________
(c) Inventory for which has
been established a contra
account, but only to the
extent of such account _________
Total Eligible Inventory $_________
ELIGIBLE INVENTORY $_________ X 50% = $_________
BORROWING BASE TOTAL $_________
REVOLVING LOANS OUTSTANDING $_________
GUARANTOR ADDENDUM
(ADDENDUM TO LOAN DOCUMENTS)
ADDENDUM dated as of ____________, ____ to CREDIT AGREEMENT
originally dated as of March 13, 1996 and amended and restated as of April __,
1997 (as amended and supplemented from time to time, the "Credit Agreement")
entered into among Exide Electronics Group, Inc. (the "Borrower"), the
Guarantors party thereto, the lenders listed on the signatory pages thereof,
NationsBank, N.A. as Documentation Agent and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK as Administrative Agent for the Lenders referred to therein (together
with its successors in such capacity, the "Agent"). Capitalized terms used but
not defined herein are used as defined in the Credit Agreement.
[Name of new Guarantor] (the "New Guarantor"), has become a
Subsidiary of the Borrower, and the New Guarantor and the Company wish to comply
with the terms of the Credit Agreement referred to therein. The New Guarantor
accordingly agrees as follows:
1. The New Guarantor hereby agrees that it is (and hereby becomes)
a "Guarantor" party to the Credit Agreement and an "Obligor" party to the
Security Agreement, in each case for all purposes as though a Guarantor or
Obligor (as the case may be) originally signatory thereto.
2. Without limitation of the foregoing:
(a) In order to secure the full and punctual payment and
performance of the Secured Obligations in accordance with the terms thereof, the
New Guarantor hereby grants to the Agent for the ratable benefit of the Secured
Parties (as defined in the Security Agreement) a continuing security interest in
and to all of the Collateral (as defined in the Security Agreement) of the New
Guarantor.
(b) The New Guarantor hereby unconditionally guarantees the full
and punctual payment (whether at stated maturity, upon acceleration or
otherwise) of the principal of and interest on each Note and the full amount of
all Letter of Credit Liabilities under the Credit Agreement, and the full and
punctual payment of all other amounts payable by the Borrower or any other
Obligor under the Loan Documents, [including without limitation all interest
accruing before and after the commencement of any bankruptcy, insolvency or
similar proceedings, whether or not allowed or allowable as a claim in such
proceedings]. Upon failure by the Borrower or any other Obligor to pay
punctually any such amount, each Guarantor agrees jointly and severally that it
shall forthwith on demand pay the amount not so paid at the place and in the
manner specified in the Credit Agreement or the other Loan Documents.
(c) The New Guarantor represents that:
(i) The New Guarantor has been duly organized, is validly existing
as a corporation, limited liability company or other business entity and is
in good standing under the laws of its jurisdiction of organization, with
full corporate or other entity powers to carry on its business as presently
conducted.
(ii) The execution, delivery and performance by the New Guarantor of
this Addendum and each other Loan Document to which the New Guarantor is a
party are within the New Guarantor's corporate or other entity powers, have
been duly authorized by all necessary corporate or other entity action,
require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate
of organization or by-laws of the New Guarantor or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
New Guarantor or result in the creation or imposition of any Lien on any
asset of the New Guarantor or any of its Subsidiaries.
(iii) This Addendum and each other Loan Document to which the New
Guarantor is a party constitutes a valid and binding agreement of the New
Guarantor, enforceable in accordance with its terms except as (i) the
enforceability hereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
IN WITNESS WHEREOF, the New Guarantor has caused this Addendum to
be duly executed by its duly authorized officer as of the day and year first
above written.
[NAME OF NEW GUARANTOR]
By____________________________
Title:
Accepted and Acknowledged as of the date first written above:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
By___________________________
Title