CREDIT AGREEMENT
Dated as of October 28, 1997
among
THE MANITOWOC COMPANY, INC.
as Borrower,
CERTAIN SUBSIDIARIES FROM TIME TO TIME
PARTIES HERETO,
as Guarantors,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
NATIONSBANK, N.A.,
as Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent
TABLE OF CONTENTS
SECTION 1 DEFINITIONS..........................................1
1.1 Definitions............................................1
1.2 Other Definitional Provisions.........................23
1.3 Accounting Terms and Determinations...................24
SECTION 2 CREDIT FACILITIES...................................24
2.1 Revolving Loans.......................................24
2.2 Term Loan.............................................26
2.3 Swingline Loan Subfacility............................27
2.4 Letter of Credit Subfacility..........................29
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES......32
3.1 Default Rate..........................................32
3.2 Extension and Conversion..............................33
3.3 Reductions in Commitments and Prepayments.............33
3.4 Fees..................................................36
3.5 Capital Adequacy......................................36
3.6 Inability To Determine Interest Rate..................37
3.7 Illegality............................................37
3.8 Requirements of Law...................................38
3.9 Taxes.................................................39
3.10 Indemnity............................................41
3.11 Pro Rata Treatment...................................42
3.12 Sharing of Payments................................. 43
3.13 Place and Manner of Payments.........................44
3.14 Indemnification; Nature of Issuing Lender's Duties...44
SECTION 4 GUARANTY............................................46
4.1 The Guaranty..........................................46
4.2 Obligations Unconditional.............................46
4.3 Reinstatement.........................................47
4.4 Certain Additional Waivers............................48
4.5 Remedies..............................................48
4.6 Continuing Guarantee................................. 48
SECTION 5 CONDITIONS..........................................48
5.1 Conditions to Closing Date............................48
5.2 Conditions to All Extensions of Credit................50
SECTION 6 REPRESENTATIONS AND WARRANTIES......................51
6.1 Financial Condition...................................51
6.2 No Change.............................................51
6.3 Corporate Existence; Compliance with Law..............52
6.4 Corporate Power; Authorization; Enforceable
Obligations ........................................52
6.5 No Legal Bar; No Default..............................52
6.6 No Material Litigation................................53
6.7 Investment Company Act................................53
6.8 Federal Regulations................................. 53
6.9 ERISA.................................................53
6.10 Environmental Matters................................54
6.11 Use of Proceeds......................................55
6.12 Subsidiaries.........................................55
6.13 Taxes................................................55
6.14 Solvency.............................................56
SECTION 7 AFFIRMATIVE COVENANTS...............................56
7.1 Financial Statements..................................56
7.2 Certificates; Other Information.......................57
7.3 Payment of Obligations................................58
7.4 Conduct of Business and Maintenance of Existence......58
7.5 Maintenance of Property; Insurance....................58
7.6 Inspection of Property; Books and Records;
Discussions.........................................58
7.7 Notices...............................................59
7.8 Environmental Laws....................................60
7.9 Financial Covenants................................. 60
7.10 Additional Subsidiary Guarantors.....................61
7.11 Interest Rate Protection.............................61
SECTION 8 NEGATIVE COVENANTS..................................62
8.1 Indebtedness..........................................62
8.2 Liens.................................................63
8.3 Nature of Business................................. 63
8.4 Consolidation, Merger, Sale or Purchase of
Assets, etc.........................................63
8.5 Advances, Investments and Loans.......................65
8.6 Transactions with Affiliates..........................65
8.7 Ownership of Subsidiaries.............................66
8.8 Fiscal Year...........................................66
8.9 Prepayments of Indebtedness, etc......................66
8.10 Dividends............................................66
8.11 Foreign Assets.......................................67
SECTION 9 EVENTS OF DEFAULT................................ 67
SECTION 10 AGENCY PROVISIONS................................ 70
10.1 Appointment..........................................70
10.2 Delegation of Duties.................................71
10.3 Exculpatory Provisions...............................71
10.4 Reliance on Communications...........................71
10.5 Notice of Default................................. 72
10.6 Non-Reliance on Agent and Other Lenders..............72
10.7 Indemnification......................................73
10.8 Agent in its Individual Capacity.....................73
10.9 Successor Agent......................................73
SECTION 11 MISCELLANEOUS......................................74
11.1 Amendments and Waivers...............................74
11.2 Notices..............................................75
11.3 No Waiver; Cumulative Remedies.......................76
11.4 Survival of Representations and Warranties...........76
11.5 Payment of Expenses and Taxes........................76
11.6 Successors and Assigns; Participations;
Purchasing Lenders.................................77
11.7 Adjustments; Set-off.................................80
11.8 Table of Contents and Section Headings...............81
11.9 Counterparts.........................................81
11.10 Severability........................................81
11.11 Integration.........................................81
11.12 Governing Law.......................................82
11.13 Consent to Jurisdiction and Service of Process......82
11.14 Confidentiality.....................................82
11.15 Acknowledgments.....................................83
11.16 Waivers of Jury Trial...............................83
SCHEDULES
---------
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Borrowing Notice for Revolving Loans
and Swingline Loans
Schedule 2.1(e) Form of Revolving Note
Schedule 2.2(d) Form of Term Note
Schedule 2.3(d) Form of Swingline Note
Schedule 2.4(a) Existing Letters of Credit
Schedule 3.2 Form of Notice for Conversion/Extension
of Revolving Loans or Term Loan
Schedule 3.9 Section 3.9 Certificate
Schedule 5.1(j) Form of Certificate of Secretary of the Borrower
Schedlue 6.6 Litigation
Schedule 6.12 Subsidiaries
Schedule 7.10 Form of Joinder Agreement
Schedule 8.1(b) Indebtedness
Scehdule 8.2 Existing Liens
Schedule 11.2 Schedule of Lenders and Commitments
Schedule 11.6 Form of Commitment Transfer Supplement
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 28, 1997 (the "Credit
Agreement"), is by and among THE MANITOWOC COMPANY, INC., a Wisconsin
corporation (the "Borrower"), those Subsidiaries identified as a
"Guarantor" on the signature pages hereto and such other Subsidiaries
as may from time to time become a party hereto (the "Guarantors"),
the several lenders identified on the signature pages hereto and such
other lenders as may from time to time become a party hereto (the
"Lenders"), and NATIONSBANK, N.A., as agent for the Lenders (in such
capacity, the "Agent") and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Documentation Agent.
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a
$203,133,860.25 credit facility for the purposes hereinafter set
forth; and
WHEREAS, the Lenders have agreed to make the requested credit facility
available to the Borrower on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date by execution of a Joinder Agreement
in accordance with Section 7.10.
"Affiliate" means, with respect to any Person, any other Person
(i) directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person or (ii) directly
or indirectly owning or holding five percent (5%) or more of the
equity interest in such Person. For purposes of this definition,
"control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Agent" means NationsBank, N.A. and any successors and assigns in
such capacity.
"Agent's Fee Letter" means the letter agreement dated as of
September 11, 1997 among NationsBank, N.A., NationsBanc Capital
Markets, Inc. and the Borrower, as amended, modified, supplemented
or replaced from time to time.
"Agent's Fees" means such term as defined in Section 3.4(d).
"Aggregate Revolving Committed Amount" means the aggregate amount
of all of the Revolving Commitments in effect from time to time.
"Applicable Percentage" means, for any day, the rate per annum set
forth below opposite the applicable Pricing Level then in effect as
shown below, it being understood that the Applicable Percentage for
(i) Base Rate Loans shall be the percentage set forth under the
column "Base Rate Loans", (ii) Eurodollar Loan shall be the
percentage set forth under the column "Eurodollar Loans and Letter
of Credit Fee", (iii) the Commitment Fee shall be the percentage
set forth under the column "Commitment Fee", and (iv) the Letter
of Credit Fee shall be the percentage set forth under the column
"Eurodollar Loans and Letter of Credit Fee":
Consolidated Base Eurodollar
Pricing Funded Rate Loans and Commitment
Level Debt Ratio Loans Letter Fee
----- ---------------- ----- -------- -------
I >2.5:1.0 0% 0.875% 0.250%
II <2.5:1.0 but >2.0:1.0 0% 0.750% 0.225%
III <2.0:1.0 but >1.5:1.0 0% 0.550% 0.175%
IV <1.5:1.0 but >1.0:1.0 0% 0.425% 0.150%
V <1.0:1.0 0% 0.375% 0.125%
The Applicable Percentage shall, in each case, be determined and
adjusted quarterly by the Agent as soon as practicable (but in any
event within 5 days) after delivery of the annual financial
information required by Section 7.1(a) or the quarterly financial
information required by Section 7.1(b), provided that the date of
determination and adjustment shall not be later than the date 5 days
after the date by which the Borrower is required to provide such
quarterly financial information in accordance with Section 7.1(b)
(each an "Interest Determination Date") based on the information
contained in such quarterly financial information. Such Applicable
Percentage shall be effective from such Interest Determination Date
until the next such Interest Determination Date. The Agent shall
determine the appropriate Pricing Level promptly upon its receipt of
the quarterly financial information and promptly notify the Borrower
and the Lenders of any change thereof. Such determinations by the
Agent shall be conclusive absent manifest error. For purposes
hereof, the initial Applicable Percentage shall be set at Pricing
Level IV.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus / of 1% or (b) the Prime Rate in effect on such day. If
for any reason the Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable after
due inquiry to ascertain the Federal Funds Rate for any reason,
including the inability or failure of the Agent to obtain sufficient
quotations in accordance with the terms hereof, the Base Rate shall
be determined without regard to clause (a) of the first sentence of
this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or
the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means the Person identified as such in the heading
hereof, together with any successors and permitted assigns.
"Borrowing Date" means in respect of any Loan, the date such Loan
is made.
"Business" means such term as defined in Section 6.10(b).
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina, Chicago,
Illinois or Manitowoc, Wisconsin are authorized or required by law
to close, except that, when used in connection with a rate
determination, borrowing or payment in respect of a Eurodollar Loan,
such day shall also be a day on which dealings between banks are
carried on in U.S. dollar deposits in London, England.
"Capital Lease" means any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on
a balance sheet of the lessee in accordance with GAAP.
"Capital Lease Obligations" means the capital lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support
thereof) having maturities of not more than twelve months from the
date of acquisition, (b) U.S. dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic
commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or
from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof (any such
bank being an "Approved Bank"), in each case with maturities of
not more than 364 days from the date of acquisition, (c) commercial
paper and variable or fixed rate notes issued by any Approved Bank
(or by the parent company thereof) or any variable or fixed rate
notes issued by, or guaranteed by, any domestic corporation rated A-
1 (or the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d) repurchase agreements with a
bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which the Borrower shall have a
perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations,
(e) obligations of any State of the United States or any political
subdivision thereof, the interest with respect to which is exempt
from federal income taxation under Section 103 of the Code, having a
long term rating of at least Aa-3 or AA- by Moody's or S&P,
respectively, (f) Investments in municipal auction preferred stock
(i) rated AAA (or the equivalent thereof) or better by S&P or Aaa
(or the equivalent thereof) or better by Moody's and (ii) with
dividends that reset at least once every 365 days and (g)
investments, classified in accordance with GAAP as current assets,
in money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $100,000,000 and
the portfolios of which are limited to investments of the character
described in the foregoing subdivisions (a) through (f).
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" means the Revolving Commitment, the LOC Commitment
and the Term Loan Commitment, individually or collectively, as
appropriate.
"Commitment Fee" means such term as defined in Section 3.4(a).
"Commitment Percentage" means the Revolving Commitment Percentage,
the LOC Commitment Percentage and/or the Term Loan Percentage, as
appropriate.
"Commitment Period" means the period from and including the
Closing Date to but not including the Termination Date.
"Commitment Transfer Supplement" means a Commitment Transfer
Supplement, substantially in the form of Schedule 11.6(c).
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer
under Section 414 of the Code.
"Consolidated Debt Service" means, for any period, the sum of
Consolidated Interest Expense plus scheduled principal payments of
Consolidated Funded Debt (including the portion of scheduled
payments in respect of Capital Leases not included in Consolidated
Interest Expense) occurring during such period. The applicable
period shall be for the four consecutive fiscal quarters ending as
of the date of determination.
"Consolidated EBIT" means, for any period, the sum of Consolidated
Net Income plus Consolidated Interest Expense plus all provisions
for any Federal, state or other income taxes for the Borrower and
its Subsidiaries on a consolidated basis, determined in accordance
with GAAP applied on a consistent basis. Except as expressly
provided otherwise, the applicable period shall be for the four
consecutive quarters ending as of the date of determination.
"Consolidated EBITDA" means, for any period, the sum of
Consolidated Net Income plus Consolidated Interest Expense plus all
provisions for any Federal, state or other income taxes plus
depreciation, amortization and other non-cash charges for the
Borrower and its Subsidiaries on a consolidated basis, determined in
accordance with GAAP applied on a consistent basis. Except as
expressly provided otherwise, the applicable period shall be for the
four consecutive quarters ending as of the date of determination.
"Consolidated Funded Debt" means Funded Debt of the Borrower and
its Subsidiaries on a consolidated basis determined in accordance
with GAAP applied on a consistent basis.
"Consolidated Funded Debt Ratio" means, as of the last day of any
fiscal quarter, the ratio of Consolidated Funded Debt on such day to
Consolidated EBITDA for the period of four consecutive fiscal
quarters ending as of such day.
"Consolidated Interest Expense" means for any period, all interest
expense, including the amortization of debt discount and premium and
the interest component under Capital Leases for the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with
GAAP applied on a consistent basis. The applicable period shall be
for the four consecutive quarters ending as of the date of
determination.
"Consolidated Net Income" means for any period, the net income of
the Borrower and its Subsidiaries on a consolidated basis determined
in accordance with GAAP applied on a consistent basis, but excluding
for purposes of determining the Consolidated Funded Debt Ratio and
the Debt Service Coverage Ratio any extraordinary gains or losses,
and any taxes on such excluded gains and any tax deductions or
credits on account of any such excluded losses. The applicable
period shall be for the four consecutive quarters ending as of the
date of computation.
"Consolidated Net Worth" means total stockholders' equity of the
Borrower and its Subsidiaries on a consolidated basis as determined
in accordance with GAAP applied on a consistent basis.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument
or undertaking to which such Person is a party or by which it or any
of its property is bound.
"Credit Documents" means this Credit Agreement, the Notes, any
Joinder Agreement, the Agent's Fee Letter, and all other related
agreements and documents issued or delivered hereunder or thereunder
or pursuant hereto or thereto.
"Credit Party" means any of the Borrower and the Guarantors.
"Credit Party Obligations" means, without duplication, all of the
obligations of the Borrower and the other Credit Parties to the
Lenders, the Agent and the Issuing Lender (including the obligations
to pay principal of and interest on the Loans, to pay LOC
Obligations, to pay all Fees, to provide cash collateral in respect
of Letters of Credit, to pay certain expenses and the obligations
arising in connection with various indemnities) whenever arising,
under this Credit Agreement, the Notes or any other of the Credit
Documents to which the Borrower or any other Credit Party is a
party.
"Debt Service Coverage Ratio" means, as of the last day of any
fiscal quarter, the ratio of Consolidated EBITDA for the period of
four consecutive fiscal quarters ending as of such day to
Consolidated Debt Service determined as of such day.
"Debt Transaction" means any sale, issuance or placement of
Indebtedness for borrowed money, including senior or subordinated
debt, whether or not evidenced by promissory note or other written
evidence of indebtedness, of the Borrower or any of its
Subsidiaries.
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means at any time, any Lender that, at such
time (a) has failed to make a Loan or advance required pursuant to
the terms of this Credit Agreement, including the funding of a
Participation Interest in accordance with the terms hereof, (b) has
failed to pay to the Agent or any Lender an amount owed by such
Lender pursuant to the terms of this Credit Agreement, or (c) has been
deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or to a receiver, trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Domestic Credit Party" means any Credit Party that is organized
and existing under the laws of the United States or any state or
commonwealth thereof or under the laws of the District of Columbia.
"Domestic Lending Office" means the office or branch of the Lender
identified on Schedule 11.2, or such other office or branch as the
Lender may identify by written notice to the Borrower and the Agent.
"Domestic Subsidiary" means any Subsidiary that is organized and
existing under the laws of the United States or any state or
commonwealth thereof or under the laws of the District of Columbia.
"Eligible Transferee" means and includes a commercial bank,
financial institution or other "accredited investor" (as defined
in Regulation D of the Securities Act of 1933, as amended).
"Environmental Laws" means any and all applicable foreign,
Federal, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirement of Law (including common
law) regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment, as
now or may at any time be in effect during the term of this Credit
Agreement.
"Equity Transaction" means any issuance by the Borrower or any of
its Subsidiaries of (i) shares of its capital stock, (ii) any shares
of its capital stock pursuant to the exercise of options or warrants
or (iii) any shares of its capital stock pursuant to the conversion
of any debt securities to equity; provided, however, "Equity
Transaction" shall not include any such transactions described in
this definition which result in proceeds of less than $500,000
during any fiscal year.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and
the rulings issued thereunder.
"Eurodollar Lending Office" means the office or branch of the
Lender identified on Schedule 11.2, or such other office or branch
as the Lender may identify by written notice to the Borrower and the
Agent.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
--------------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System
(or any successor), as such regulation may be amended from time to
time or any successor regulation, as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined), whether or not Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available
from time to time to a Lender. The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change
in the Eurodollar Reserve Percentage. The parties hereto
acknowledge and agree that, as of the Closing Date, the Eurodollar
Reserve Percentage is zero (0).
"Event of Default" means such term as defined in Section 9.
"Existing Letters of Credit" means those Letters of Credit
outstanding on the Closing Date and identified on Schedule 2.4(a).
"Extension of Credit" means as to any Lender, the making of a Loan
by such Lender or the issuance of, or participation in, a Letter of
Credit by such Lender.
"Federal Funds Rate" means, for any day, the rate of interest per
annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 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 Business
Day next succeeding such day, provided that (A) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Business Day and (B) if
no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted
to the Agent on such day on such transactions as determined by the
Agent.
"Fee" means any fee payable pursuant to Section 3.4.
"Foreign Subsidiary" means any Subsidiary that is not organized
and existing under the laws of the United States or any state or
commonwealth thereof or under the laws of the District of Columbia.
"Funded Debt" means, for any Person, without duplication, (i) all
Indebtedness of such Person for borrowed money (including without
limitation, indebtedness evidenced by promissory notes, bonds,
debentures and similar instruments and further any portion of the
purchase price for assets or acquisitions permitted hereunder which
may be financed by the seller and Guarantee Obligations by such
Person of Funded Debt of Other Persons), (ii) all purchase money
Indebtedness of such Person, (iii) the principal portion of Capital
Lease Obligations, (iv) the maximum amount available to be drawn
under standby letters of credit and bankers' acceptances issued or
created for the account of such Person, (v) all preferred stock
issued by such Person and required by the terms thereto to be
redeemed, or for which mandatory sinking fund payments are due, by a
fixed date, and (vi) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale of
receivables (or other similar transaction) regardless of whether
such transaction is effected without recourse to such Person or in a
manner which would not be reflected on the balance sheet of such
Person in accordance with GAAP. Funded Debt shall include payments
in respect of Funded Debt which constitute current liabilities of
the obligor under GAAP. For purposes hereof, Funded Debt shall not
include Subordinated Debt or intercompany Indebtedness owing by a
Credit Party to another Credit Party.
"GAAP" means generally accepted accounting principles in effect in
the United States of America applied on a consistent basis, subject,
however, in the case of determination of compliance with the
financial covenants set out in Section 7.9 to the provisions of
Section 1.3.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation" means, as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any
letter of credit) to induce the creation of which the guaranteeing
person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing
any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary
obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation
of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and
(b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantor" means those Subsidiaries of the Borrower identified as
a "Guarantor" on the signature pages hereto, and each Additional
Credit Party which has executed a Joinder Agreement, together with
their successors and permitted assigns.
"Guaranty" means the guaranty of the Guarantors set forth in
Section 4.
"Indebtedness" means, of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable
in accordance with customary practices), (b) any other indebtedness
of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under Capital
Leases, (d) all obligations of such Person in respect of acceptances
issued or created for the account of such Person, (e) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable
for the payment thereof, (f) all obligations of such Person under
conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations
or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (g) all obligations of such
Person under take-or-pay or similar arrangements or under
commodities agreements, (h) all Guarantee Obligations of such
Person, (i) all obligations of such Person in respect of interest
rate protection agreements, foreign currency exchange agreements,
commodity purchase or option agreements or other interest or
exchange rate or commodity price hedging agreements, (j) the maximum
amount of all letters of credit issued or bankers' acceptances
created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent not theretofore reimbursed),
(k) all preferred stock issued by such Person and required by the
terms thereto to be redeemed, or for which mandatory sinking fund
payments are due, by a fixed date, (l) all other obligations which
would be shown as a liability on the balance sheet of such Person
and (m) the aggregate amount of uncollected accounts receivable of
such Person subject at such time to a sale of receivables (or other
similar transaction) regardless of whether such transaction is
effected without recourse to such Person or in a manner which would
not be reflected on the balance sheet of such Person in accordance
with GAAP; but specifically excluding from the foregoing trade
payables and other expenses and reserves (whether classified as long
term or short term) arising or incurred in the ordinary course of
business. For purposes hereof, Indebtedness shall include
Indebtedness of any partnership in which such Person is a general
partner (except for any such Indebtedness with respect to which the
holder is limited to the assets of such partnership or joint
venture).
"Insolvency" means with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such
term as used in Section 4245 of ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
"Interbank Offered Rate" means, with respect to any Eurodollar
Loan for the Interest Period applicable thereto, the average
(rounded upward to the nearest one-sixteenth (1/16) of one percent)
per annum rate of interest determined by the office of the Agent
(each such determination to be conclusive and binding absent
manifest error) as of two Business Days prior to the first day of
such Interest Period, as the effective rate at which deposits in
immediately available funds in U.S. dollars are being, have been, or
would be offered or quoted by the Agent to major banks in the
applicable interbank market for Eurodollar deposits at such time as
the Agent may determine during the Business Day which is the second
Business Day immediately preceding the first day of such Interest
Period, for a term comparable to such Interest Period and in the
amount of the requested Eurodollar Loan. If no such offers or
quotes are generally available for such amount, then the Agent shall
be entitled to determine the Eurodollar Rate by estimating in its
reasonable judgment the per annum rate (as described above) that
would be applicable if such quote or offers were generally
available.
"Interest Payment Date" means (a) as to any Base Rate Loan, the
last day of each March, June, September and December and the
Termination Date, (b) as to any Swingline Loan, such day as may be
mutually agreed upon by the Borrower and the Swingline Lender, but
not less frequently than once a quarter, (c) as to any Eurodollar Loan
having an Interest Period of three months or less, the last day of
such Interest Period, and (d) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three
months after the first day of such Interest Period and the last day
of such Interest Period. Whenever any Interest Payment Date shall
be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and Fees for the period of such
extension), except that in the case of Eurodollar Loans, if the
extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the next
preceding Business Day as provided in Section 3.13.
"Interest Period" means with respect to any Eurodollar Loan,
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in the notice of
borrowing or notice of conversion given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to
the Agent not less than three Business Days prior to the last day
of the then current Interest Period with respect thereto;
provided that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business
Day;
(B) any Interest Period pertaining to a Eurodollar Loan that
begins on the last 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 end on
the last Business Day of the relevant calendar month;
(C) if the Borrower shall fail to give notice as provided above,
the Borrower shall be deemed to have selected a Base Rate Loan to
replace the affected Eurodollar Loan;
(D) with regards to Revolving Loans, any Interest Period that
would otherwise extend beyond the Termination Date shall end on
the Termination Date and with regard to the Term Loan, no
Interest Period shall extend beyond any principal amortization
payment date unless the portion of the Term Loan consisting of
Base Rate Loans together with the portion of the Term Loan
consisting of Eurodollar Loans with Interest Periods expiring
prior to or concurrently with the date such principal
amortization payment date is due, is at least equal to the amount
of such principal amortization payment due on such date; and
(E) no more than 20 Eurodollar Loans may be in effect at any
time. For purposes hereof, Eurodollar Loans with different
Interest Periods shall be considered as separate Eurodollar
Loans, even if they shall begin on the same date and have the
same duration, although borrowings, extensions and conversions
may, in accordance with the provisions hereof, be combined at the
end of existing Interest Periods to constitute a new Eurodollar
Loan with a single Interest Period.
"Interest Protection Agreement" means an interest rate swap or
other interest rate protection agreement or interest rate future,
option, cap, collar or other hedging arrangement.
"Issuing Lender" means as to the Existing Letters of Credit, the
Issuing Lenders identified on Schedule 2.4(a), and as to Letters of
Credit issued after the Closing Date, NationsBank, The Northern
Trust Company and PNC Bank, National Association, as the Borrower
may elect.
"Issuing Lender Fees" means such term as defined in Section 3.4c.
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Schedule 7.10, executed and delivered by an Additional
Credit Party in accordance with the provisions of Section 7.10.
"Lenders" means each of the Persons identified as a "Lender" on
the signature pages hereto, and each Person which may become a
Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"Letter of Credit" means any Existing Letter of Credit and any
letter of credit issued for the account of a Credit Party by an
Issuing Lender as provided in Section 2.4, as such letter of credit
may be amended, supplemented, extended or otherwise modified from
time to time.
"Letter of Credit Fees" means such term as defined in Section
3.4(b).
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory
or otherwise), preference, priority or charge of any kind (including
any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, any financing or similar statement
or notice filed under the Uniform Commercial Code as adopted and in
effect in the relevant jurisdiction or other similar recording or
notice statute, and any lease in the nature thereof).
"Loan" means a Revolving Loan, a Swingline Loan and/or the Term
Loan, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to
issue Letters of Credit and with respect to each Lender, the
commitment of such Lender to purchase participation interests in the
Letters of Credit up to such Lender's LOC Committed Amount as
specified in Schedule 2.1(a) (subject to adjustment on account of
assignment pursuant to the provisions of Section 11.6(c) hereof), as
such amount may be reduced from time to time in accordance with the
provisions hereof.
"LOC Commitment Percentage" means for each Lender, the percentage
identified as its LOC Commitment Percentage on Schedule 2.1(a), as
such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 11.6(c).
"LOC Committed Amount" means, collectively, the aggregate amount
of all of the LOC Commitments of the Lenders to issue and
participate in Letters of Credit as referenced in Section 2.4 and,
individually, the amount of each Lender's LOC Commitment as
specified in Schedule 2.1(a) (subject to adjustment on account of
assignment pursuant to the provisions of Section 11.6(c) hereof).
"LOC Documents" means with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing
or providing for (i) the rights and obligations of the parties
concerned or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to
be drawn under Letters of Credit then outstanding, assuming
compliance with all requirements for drawings referred to in such
Letters of Credit plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed.
"Mandatory Borrowing" means such term as defined in Section
2.3(b)(ii) or Section 2.4(e).
"Material Adverse Effect" means a material adverse effect on (a)
the business, operations, property, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole, (b) the ability of the Borrower or the other Credit
Parties to perform their obligations, when such obligations are
required to be performed, under this Credit Agreement or any of the
other Credit Documents or (c) the validity or enforceability of this
Credit Agreement, any of the Notes or any of the other Credit
Documents or the rights or remedies of the Agent or the Lenders
hereunder or thereunder.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
or assignee of the business of such company in the business of
rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NationsBank" means NationsBank, N.A. and its successors.
"Net Proceeds" means the gross cash proceeds (including cash by
way of deferred payment pursuant to a promissory note, receivable or
otherwise, but only as and when received) received from the sale,
lease, conveyance, disposition or other transfer of assets, or from
a Recovery Event or from the sale, issuance or placement of equity
securities, Indebtedness for borrowed money or Subordinated Debt to
or from a Person other than a Credit Party, net of (i) transaction
costs payable to third parties, (ii) the estimated taxes payable
with respect to such proceeds (including, without duplication,
withholding taxes), (iii) Indebtedness (other than Indebtedness of
the Lenders pursuant to the Credit Documents) which is secured by
the assets which are the subject of such event to the extent such
Indebtedness is paid with a portion of the proceeds therefrom, and
(iv) any and all cash costs which may occur as a result of
discontinuing operations, shut-downs or otherwise resulting from,
the disposition of such assets.
"Non-Excluded Taxes" means such term as is defined in Section 3.9.
"Non-Guarantor Domestic Subsidiaries" means such term as defined
in Section 7.10.
"Note" or "Notes" means the Revolving Notes, the Swingline Note
and/or the Term Notes, collectively, separately or individually, as
appropriate.
"Notice of Borrowing" means the written notice of borrowing as
referenced and defined in Section 2.1(b)(i) or 2.3(b)(i), as
appropriate.
"Notice of Extension/Conversion" means the written notice of
extension or conversion as referenced and defined in Section 3.2.
"Obligations" means collectively, Loans and LOC Obligations.
"Participants" means such term as defined in Section 11.6.
"Participation Interest" means the purchase by a Lender of a
participation interest in Swingline Loans as provided in Section
2.3(b)(ii) or in Letters of Credit as provided in Section 2.4.
"PBGC" means the Pension Benefit Guaranty Corporation established
under ERISA, and any successor thereto.
"Permitted Investments" means (i) cash and Cash Equivalents, (ii)
receivables owing to the Borrower or any of its Subsidiaries or any
receivables and advances to suppliers, in each case if created,
acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms, (iii)
investments in and to a Domestic Credit Party, (iv) loans and
advances to officers, directors, employees and Affiliates in an
aggregate amount not to exceed $500,000 at any time outstanding, (v)
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business,
(vi) investments, acquisitions or transactions permitted under
Section 8.4(b), (vii) with respect to any Subsidiary that is a
Foreign Subsidiary, loans, advances and/or investments (A) in and to
Foreign Subsidiaries (subject, however, to the provisions of Section
8.11) and (B) by such Foreign Subsidiary to or in other foreign
Persons, whether denominated in Dollars or otherwise, (viii) with
respect to any pension trust maintained for the benefit of any
present or former employees of the Borrower or any Subsidiary, such
loans, advances and/or investments as the trustee or administrator
of the trust shall deem advisable pursuant to the terms of such
trust, and (ix) additional loan advances and/or investments of a
nature not contemplated by the foregoing clauses hereof, provided
that such loans, advances and/or investments made pursuant to this
clause (ix) shall not exceed an aggregate amount of $5,000,000. As
used herein, "investment" means all investments, in cash or by
delivery of property made, directly or indirectly in, to or from any
Person, whether by acquisition of shares of capital stock, property,
assets, indebtedness or other obligations or securities or by loan
advance, capital contribution or otherwise.
"Permitted Liens" means
(i) Liens created by or otherwise existing, under or in
connection with this Credit Agreement or the other Credit
Documents in favor of the Lenders;
(ii) Liens in favor of a Lender hereunder as the provider of
interest rate protection relating to the Loans hereunder, but
only (A) to the extent such Liens secure obligations under such
interest rate protection agreements permitted under Section 8.1,
(B) to the extent such Liens are on the same collateral as to
which the Lenders also have a Lien and (C) if such provider and the
Lenders shall share pari passu in the collateral subject to such
Liens;
(iii) purchase money Liens securing purchase money indebtedness
(and refinancings thereof) to the extent permitted under Section
8.1(c);
(iv) Liens for taxes, assessments, charges or other governmental
levies not yet due or as to which the period of grace (not to
exceed 60 days), if any, related thereto has not expired or which
are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as
the case may be, in conformity with GAAP (or, in the case of
Subsidiaries with significant operations outside of the United
States of America, generally accepted accounting principles in
effect from time to time in their respective jurisdictions of
incorporation);
(v) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days
or which are being contested in good faith by appropriate
proceedings;
(vi) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(vii) deposits to secure the performance of bids, trade contracts,
(other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business;
(viii) any extension, renewal or replacement (or successive
extensions, renewals or replacements) , in whole or in part, of
any Lien referred to in the foregoing clauses; provided that such
extension, renewal or replacement Lien shall be limited to all or
a part of the property which secured the Lien so extended,
renewed or replaced (plus improvements on such property);
(ix) easements, rights of way, restrictions and other similar
encumbrances incurred in the ordinary course of business which,
in the aggregate, are not material in amount and which do not in
any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct
of the business of the Borrower or any Subsidiary;
(x) Liens in existence on the date hereof listed on Schedule
8.2, securing Indebtedness permitted by Section 8.1(b), provided
that no such Lien is spread to cover any additional property
(other than proceeds of the collateral originally subject to such
Lien in accordance with the instrument creating such Lien) after
the Closing Date and that the amount of Indebtedness secured
thereby is not increased;
(xi) Liens on the property or assets of a corporation which
becomes a Subsidiary after the Closing Date securing Indebtedness
permitted by Section 8.1(i), provided that (A) such Liens existed
at the time such corporation became a Subsidiary and were not
created in anticipation thereof, and (B) no such Lien is spread
to cover any additional property (other than proceeds of the
collateral originally subject to such Lien in accordance with the
instrument creating such Lien) after the Closing Date and that
the amount of Indebtedness secured thereby is not increased;
(xii) Liens in the nature of licenses that arise in the ordinary
course of business and consistent with past practice;
(xiii) Liens incurred in connection with Indebtedness permitted by
Section 8.1(h), provided that no such Lien shall be spread to
cover any additional property after the Closing Date and the
amount of Indebtedness secured thereby shall not be increased;
(xiv) leases and subleases otherwise permitted hereunder granted
to others not interfering in any material respect in the business
of the Borrower or any Subsidiary; and
(xv) attachment or judgment Liens, where the attachment or
judgment which gave rise to such Liens does not constitute an
Event of Default hereunder.
"Permitted Sale-Leaseback Transaction" means a transaction
pursuant to which a Credit Party sells an item of equipment to a
financial institution and concurrently with such sale (i) leases
such item of equipment back from such financial institution and
(ii) subleases such item of equipment to a customer of the Credit
Party pursuant to a sublease agreement under which such customer
obtains an option to purchase such item of equipment at or before
the end of such sublease.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any
Governmental Authority.
"Plan" means at any particular time, any employee benefit plan
which is covered by Title IV of ERISA and in respect of which the
Borrower or a Commonly Controlled Entity is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA
be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the per annum rate of interest established
from time to time by the Agent at its principal office in
Charlotte, North Carolina as its Prime Rate. Any change in the
interest rate resulting from a change in the Prime Rate shall
become effective as of 12:01 a.m. of the Business Day on which
each change in the Prime Rate is announced by the Agent. The
Prime Rate is a reference rate used by the Agent in determining
interest rates on certain loans and is not intended to be the
lowest rate of interest charged on any extension of credit to any
debtor.
"Pro Forma Basis" means, with respect to any transaction, that
such transaction shall be deemed to have occurred as of the first
day of the four-fiscal quarter period ending as of the end of the
fiscal quarter most recently ended prior to the date of such
transaction with respect to which the Agent has received the
financial information required under Section 7.1. As used
herein, "transaction" means any merger, consolidation or
acquisition as referenced in Section 8.4(c).
"Properties" means such term as defined in subsection 6.10(a).
"Purchasing Lender" means such term as defined in Section 11.6(c).
"Recovery Event" means the receipt by the Borrower or any of its
Subsidiaries of any cash insurance proceeds or condemnation award
payable by reason of theft, loss, physical destruction or damage,
taking or similar event with respect to any of their respective
property or assets.
"Register" means such term as defined in Section 11.6(d).
"Reorganization" means with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty-day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. S2615.
"Required Lenders" means Lenders holding in the aggregate at least
51% of the sum of (i) all Obligations then outstanding at such time
and (ii) the aggregate unused Commitments at such time (treating for
purposes hereof in the case of Swingline Loans and LOC Obligations,
in the case of the Swingline Lender and the Issuing Lender, only the
portion of the Swingline Loans and the LOC Obligations of the
Swingline Lender and the Issuing Lender, respectively, which is not
subject to the Participation Interests of the other Lenders and, in
the case of the Lenders other than the Swingline Lender and the
Issuing Lender, the Participation Interests of such Lenders in
Swingline Loans and LOC Obligations hereunder as direct
Obligations); provided, however, that if any Lender shall be a
Defaulting Lender at such time, then there shall be excluded from
the determination of Required Lenders the Obligations (including
Participation Interests) of such Defaulting Lender and such
Defaulting Lender's Commitments, or after termination of the
Commitments, the principal balance of the Obligations owing to such
Defaulting Lender.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
to which any of its material property is subject.
"Revolving Commitment" means with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding up to such Lender's
Revolving Committed Amount as specified in Schedule 2.1(a) (subject
to adjustment on account of assignment pursuant to the provisions of
Section 11.6(c) hereof), as such amount may be reduced from time to
time in accordance with the provisions hereof.
"Revolving Commitment Percentage" means for each Lender, the
percentage identified as its Revolving Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of
Section 11.6(c).
"Revolving Committed Amount" means collectively, the aggregate
amount of all of the Revolving Commitments as referenced in Section
2.1(a) and, individually, the amount of each Lender's Revolving
Commitment as specified in Schedule 2.1(a) (subject to adjustment on
account of assignment pursuant to the provisions of Section 11.6(c)
hereof).
"Revolving Loans" means as defined in Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory notes
of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1(e), individually or
collectively, as appropriate, as such promissory notes may be
amended, modified, supplemented, extended, renewed or replaced from
time to time.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Single Employer Plan" means any Plan which is not a Multi-
Employer Plan.
"Solvent" means, with respect to any Credit Party as of a
particular date, that on such date (i) such Credit Party is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Credit Party does not intend
to, and does not believe that it will, incur debts or liabilities
beyond such Credit Party's ability to pay as such debts and
liabilities mature in their ordinary course, (iii) such Credit Party
is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Credit Party's
property would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in
which such Credit Party is engaged or is to engage, (vi) the fair
value of the property of such Credit Party is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such Credit Party and (v) the present fair saleable
value of the assets of such Credit Party is not less than the amount
that will be required to pay the probable liability of such Credit
Party on its debts as they become absolute and matured. In
computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Specified Sales" means (i) the sale, transfer, lease or other
disposition of inventory and materials in the ordinary course of
business, (ii) the sale, transfer, lease or other disposition of
machinery, parts, equipment and real estate no longer useful in the
conduct of the business of the Borrower or any of its Subsidiaries,
as appropriate, and (iii) in addition to the transactions described
in subsections (i) and (ii), any other sale, transfer, lease or
other disposition of assets where the proceeds of such disposition
do not exceed $10,000,000 during any fiscal year or $20,000,000
during the term of this Credit Agreement.
"Subordinated Debt" means such term as defined in Section 8.9.
"Subsidiary" means, as to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Credit Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at
any time outstanding up to the Swingline Committed Amount, and the
commitment of the Lenders to purchase participation interests in the
Swingline Loans as provided in Section 2.3(b)(ii), as such amounts
may be reduced from time to time in accordance with the provisions
hereof.
"Swingline Committed Amount" means the amount of the Swingline
Lender's Swingline Commitment as specified in Section 2.3(a).
"Swingline Lender" means NationsBank, in its capacity as such.
"Swingline Loan" or "Swingline Loans" means as defined in Section
2.3(a).
"Swingline Note" means the promissory note of the Borrower in
favor of the Swingline Lender evidencing the Swingline Loans
provided pursuant to Section 2.3(d), as such promissory note may be
amended, modified, supplemented, extended, renewed or replaced from
time to time.
"Term Loan" means as defined in Section 2.2(a).
"Term Loan Commitment" means with respect to each Lender, the
commitment of such Lender to make its portion of the Term Loan as
specified in Schedule 2.1(a) (and for purposes of making
determinations of Required Lenders hereunder after the Closing Date,
the principal amount outstanding on the Term Loan).
"Term Loan Commitment Percentage" means for each Lender, its Term
Loan Commitment Percentage on Schedule 2.1(a), as such percentage
may be modified in accordance with the provisions of Section 11.6(c).
"Term Loan Committed Amount" means collectively, the aggregate
amount of all of the Term Loan Commitments as referenced in Section
2.2(a) and, individually, the amount of each Lender's Term Loan
Commitment as specified in Schedule 2.1(a).
"Term Note" or "Term Notes" means the promissory notes of the
Borrower in favor of each of the Lenders evidencing the Term Loan
provided pursuant to Section 2.2(d), individually or collectively,
as appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Termination Date" means December 31, 2001.
"Threshold Requirement" means such term as defined in Section
7.10.
"Tranche" means the collective reference to Eurodollar Loans whose
Interest Periods begin and end on the same day. A Tranche may
sometimes be referred to as a "Eurodollar Tranche".
"Transfer Effective Date" means such term as defined in the
Commitment Transfer Supplement.
"Transferee" means such term as defined in Section 11.6(f).
"Type" means, as to any Loan, its nature as a Base Rate Loan,
Eurodollar Loan or Swingline Loan, as the case may be.
1.2 Other Definitional Provisions
(a) Unless otherwise specified therein, all terms defined in
this Credit Agreement shall have the defined meanings when used
in the Notes or other Credit Documents or any certificate or
other document made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Credit Agreement shall refer
to this Credit Agreement as a whole and not to any particular
provision of this Credit Agreement, and Section, subsection,
Schedule and Exhibit references are to this Credit Agreement
unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) For purposes of computation of periods of time hereunder,
the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding".
1.3 Accounting Terms and Determinations.
Unless otherwise specified herein, all terms of an accounting
character 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 GAAP, applied on a basis consistent (except for changes concurred
in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited
consolidated financial statements of the Borrower and its consolidated
Subsidiaries delivered to the Lenders unless with respect to any such
change concurred in by the Borrower's independent public accountants
or required by GAAP, in determining compliance with any of the
provisions of this Credit Agreement or any of the other Credit
Documents: (i) the Borrower shall have objected to determining such
compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Lenders shall so object in writing
within 30 days after the delivery of such financial statements, in
either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements
delivered under Section 7.1 hereof, shall mean the financial
statements referred to in Section 6.1).
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period, subject
to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans ("Revolving Loans") to
the Borrower from time to time for the purposes hereinafter set
forth; provided, however, that (i) with regard to each Lender
individually, the sum of such Lender's share of outstanding
Revolving Loans plus such Lender's Revolving Commitment
Percentage of Swingline Loans plus such Lender's LOC Commitment
Percentage of LOC Obligations shall not exceed such Lender's
Revolving Committed Amount, and (ii) with regard to the Lenders
collectively, the sum of the aggregate amount of outstanding
Revolving Loans plus Swingline Loans plus the aggregate amount
of LOC Obligations shall not exceed ONE HUNDRED TWENTY-FIVE
MILLION DOLLARS ($125,000,000) (as such aggregate maximum
amount may be reduced from time to time as provided herein, the
"Revolving Committed Amount"). Revolving Loans may consist
of Base Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof.
Eurodollar Loans shall be made by each Lender at its Eurodollar
Lending Office and Base Rate Loans at its Domestic Lending
Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephone
notice promptly confirmed in writing which confirmation may
be by fax) to the Agent not later than 11:30 A.M.
(Charlotte, North Carolina time) on the Business Day prior
to the date of requested borrowing in the case of Base Rate
Loans, and on the third Business Day prior to the date of
the requested borrowing in the case of Eurodollar Loans.
Each such request for borrowing shall be irrevocable and
shall specify (A) that a Revolving Loan is requested, (B)
the date of the requested borrowing (which shall be a
Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised
of Base Rate Loans, Eurodollar Loans or a combination
thereof, and if Eurodollar Loans are requested, the Interest
Period(s) therefor. A form of Notice of Borrowing (a
"Notice of Borrowing") is attached as Schedule 2.1(b)(i).
If the Borrower shall fail to specify in any such Notice of
Borrowing (I) an applicable Interest Period in the case of a
Eurodollar Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, or (II) the
type of Revolving Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder. The
Agent shall give notice to each Lender promptly upon
receipt of each Notice of Borrowing, the contents thereof
and each such Lender's share thereof.
(ii) Minimum Amounts. Each Revolving Loan borrowing shall
be in a minimum aggregate amount of $2,000,000 and integral
multiples of $1,000,000 in excess thereof (or the remaining
amount of the Revolving Commitment, if less).
(iii) Advances. Each Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing
available to the Agent for the account of the Borrower at
the office of the Agent specified in Schedule 11.2, or at
such other office as the Agent may designate in writing, by
1:00 P.M. (Charlotte, North Carolina time) on the date
specified in the applicable Notice of Borrowing in Dollars
and in funds immediately available to the Agent. Such
borrowing will then be made available to the Borrower by the
Agent by crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as
received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans
shall be due and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1,
Revolving Loans shall bear interest as follows:
(i) Base Rate Loans. During such periods as Revolving
Loans shall be comprised of Base Rate Loans, each such Base
Rate Loan shall bear interest at a per annum rate equal to
the sum of the Base Rate plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as Revolving
Loans shall be comprised of Eurodollar Loans, each such
Eurodollar Loan shall bear interest at a per annum rate
equal to the sum of the applicable Eurodollar Rate plus the
Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each
Interest Payment Date.
(e) Revolving Notes. The Revolving Loans shall be evidenced by
a duly executed promissory note of the Borrower to each Lender in
the original principal amount of each such Lender's Revolving
Committed Amount in substantially the form of Schedule 2.1(e).
2.2 Term Loan.
(a) Term Loan. Subject to and upon the terms and
conditions hereof, each Lender severally agrees to make its
Term Loan Commitment Percentage of a term loan (the "Term
Loan") to the Borrower on the Closing Date in the aggregate
principal amount of SEVENTY-EIGHT MILLION ONE HUNDRED
THIRTY-THREE THOUSAND EIGHT HUNDRED SIXTY DOLLARS AND
TWENTY-FIVE CENTS ($78,133,860.25) for the purposes
hereinafter set forth. The Term Loan may consist of Base
Rate Loans or Eurodollar Loans, or a combination thereof, as
the Borrower may request. Amounts repaid on the Term Loan
may not be reborrowed. Eurodollar Loans shall be made by
each Lender at its Eurodollar Lending Office and Base Rate
Loans at its Domestic Lending Office.
(b) Repayment of Term Loan. The principal amount of the
Term Loan shall be repaid in seventeen (17) consecutive
quarterly installments as follows:
Payment Date Amount
December 31, 1997 $ 2,743,794.25
March 31, 1998 $ 3,727,836.75
June 30, 1998 $ 3,727,836.75
September 30, 1998 $ 3,727,836.75
December 31, 1998 $ 3,727,836.75
March 31, 1999 $ 4,711,879.25
June 30, 1999 $ 4,711,879.25
September 30, 1999 $ 4,711,879.25
December 31, 1999 $ 4,711,879.25
March 31, 2000 $ 4,711,879.25
June 30, 2000 $ 4,711,879.25
September 30, 2000 $ 4,711,879.25
December 31, 2000 $ 4,711,879.25
March 31, 2001 $ 5,695,921.25
June 30, 2001 $ 5,695,921.25
September 30, 2001 $ 5,695,921.25
December 31, 2001 $ 5,695,921.25
---------------
$ 78,133,860.25
(c) Interest on the Term Loan. Subject to the provisions
of Section 3.1, the Term Loan shall bear interest as
follows:
(i) Base Rate Loans. During such periods as the Term Loan
shall be comprised of Base Rate Loans, each such Base Rate
Loan shall bear interest at a per annum rate equal to the
sum of the Base Rate plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as the Term Loan
shall be comprised of Eurodollar Loans, each such
Eurodollar Loan shall bear interest at a per annum rate
equal to the sum of the applicable Eurodollar Rate plus
the Applicable Percentage.
Interest on the Term Loan shall be payable in arrears on each Interest
Payment Date.
(d) Term Notes. The Term Loan shall be evidenced by a duly
executed promissory note of the Borrower to each Lender in
substantially the form of Schedule 2.2(d) in the original
principal amount of each such Lender's Term Loan Committed
Amount.
2.3 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment Period,
subject to the terms and conditions hereof, the Swingline
Lender, in its individual capacity, agrees to make certain
revolving credit loans to the Borrower (each a "Swingline
Loan" and, collectively, the "Swingline Loans") for the
purposes hereinafter set forth; provided, however, (i) the
aggregate amount of Swingline Loans outstanding at any time
shall not exceed TEN MILLION DOLLARS ($10,000,000) (the
"Swingline Committed Amount"), and (ii) the sum of the
aggregate amount of outstanding Revolving Loans plus
Swingline Loans plus the aggregate amount of LOC Obligations
shall not exceed the aggregate Revolving Committed Amount.
Swingline Loans hereunder may be repaid and reborrowed in
accordance with the provisions hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. The Swingline
Lender will make Swingline Loans available to the Borrower
upon request or on the basis of such other arrangements as
may be agreed upon between the Swingline Lender and the
Borrower. A notice of request for Swingline Loan
borrowing may, but need not, be in the form of Schedule
2.1(b)(i). There shall be no minimum amount for Swingline
Loan borrowings hereunder.
(ii) Repayment of Swingline Loans. Each Swingline Loan
borrowing shall be due and payable on the earlier of (A)
the date of the next Revolving Loan borrowing, or (B) the
Termination Date. If, and to the extent, any Swingline
Loans shall be outstanding on the date of any Revolving
Loan borrowing, such Swingline Loans shall first be repaid
from the proceeds of such Revolving Loan borrowing prior
to disbursement to the Borrower. In addition, the
Swingline Lender may, at any time, in its sole discretion,
by written notice to the Borrower and the Agent, demand
repayment of its Swingline Loans by way of a Revolving
Loan borrowing, in which case the Borrower shall be deemed
to have requested a Revolving Loan borrowing comprised
entirely of Base Rate Loans in the amount of such
Swingline Loans; provided, however, that, in the following
circumstances, any such demand shall also be deemed to
have been given one Business Day prior to each of (i) the
Termination Date, (ii) the occurrence of any Event of
Default described in Section 9(e), (iii) upon acceleration
of the Obligations hereunder, whether on account of an
Event of Default described in Section 9(e) or any other
Event of Default, and (iv) the exercise of remedies in
accordance with the provisions of Section 9 hereof (each
such Revolving Loan borrowing made on account of any such
deemed request therefor as provided herein being
hereinafter referred to as a "Mandatory Borrowing").
Each Lender hereby irrevocably agrees to make such
Revolving Loans promptly upon any such request or deemed
request on account of each Mandatory Borrowing in the
amount and in the manner specified in the preceding
sentence and on the same such date notwithstanding (I) the
amount of Mandatory Borrowing may not comply with the
minimum amount for borrowings of Revolving Loans otherwise
required hereunder, (II) whether any conditions specified
in Section 5.2 are then satisfied, (III) whether a Default
or an Event of Default then exists, (IV) failure of any
such request or deemed request for Revolving Loans to be
made by the time otherwise required in Section 2.1(b)(i),
(V) the date of such Mandatory Borrowing, or (VI) any
reduction in the Revolving Committed Amount or termination
of the Commitments relating thereto immediately prior to
such Mandatory Borrowing or contemporaneous therewith. In
the event that any Mandatory Borrowing cannot for any
reason be made on the date otherwise required above
(including, without limitation, as a result of the
commencement of a proceeding in bankruptcy with respect to
the Borrower), then each Lender hereby agrees that it
shall forthwith purchase (as of the date the Mandatory
Borrowing would otherwise have occurred, but adjusted for
any payments received from the Borrower on or after such
date and prior to such purchase) from the Swingline Lender
such participations in the outstanding Swingline Loans as
shall be necessary to cause each such Lender to share in
such Swingline Loans ratably based upon its respective
Revolving Commitment Percentage (determined before giving
effect to any termination of the Commitments pursuant to
Section 9), provided that (A) all interest payable on the
Swingline Loans shall be for the account of the Swingline
Lender until the date as of which the respective
participation is purchased, and (B) at the time any
purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to
pay to the Swingline Lender interest on the principal
amount of such participation purchased for each day from
and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date of
payment for such participation, at the rate equal to, if
paid within two (2) Business Days of the date of the
Mandatory Borrowing, the Federal Funds Rate, and
thereafter at a rate equal to the Base Rate.
(c) Interest on Swingline Loans. Subject to the provisions
of Section 3.1, Swingline Loans shall bear interest at a per
annum rate equal to the Base Rate plus the Applicable
Percentage. Interest on Swingline Loans shall be payable in
arrears on each Interest Payment Date.
(d) Swingline Note. The Swingline Loans shall be evidenced
by a duly executed promissory note of the Borrower to the
Swingline Lender in the original amount of the Swingline
Committed Amount and substantially in the form of Schedule
2.3(d).
2.4 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof
and of the LOC Documents, if any, and any other terms and
conditions which the Issuing Lender may reasonably require,
during the Commitment Period the Issuing Lender shall issue,
and the Lenders shall participate in, Letters of Credit for
the account of the Borrower from time to time upon request
in a form reasonably acceptable to the Issuing Lender;
provided, however, that (i) the aggregate amount of LOC
Obligations shall not at any time exceed FIFTEEN MILLION
DOLLARS ($15,000,000) (the "LOC Committed Amount"), and
(ii) the sum of the aggregate amount of Revolving Loans plus
Swingline Loans plus the aggregate amount of LOC Obligations
shall not at any time exceed the aggregate Revolving
Committed Amount. Except as otherwise expressly agreed upon
by all of the Lenders, no Letter of Credit shall have an
original expiry date more than one year from the date of
issuance or extension; provided, however, that so long as no
Default or Event of Default shall have occurred and be
continuing and subject to the other terms and conditions to
the issuance of Letters of Credit hereunder, the expiry
dates of Letters of Credit may be extended annually on each
anniversary date of their date of issuance for an additional
period not to exceed one year; and provided further that no
Letter of Credit as originally issued or as extended, shall
have an expiry date extending beyond the Termination Date,
except that prior to the Termination Date a Letter of Credit
may be issued or extended with an expiry date extending
beyond the Termination Date if, and to the extent that the
Borrower shall provide cash collateral to the Issuing Lender
on the date of issuance or extension in an amount equal to
the maximum amount available to be drawn under such Letter
of Credit. Each Letter of Credit shall comply with the
related LOC Documents. The issuance and expiry date of each
Letter of Credit shall be a Business Day. Letters of Credit
shall be issued or extended in minimum original face amounts
of $200,000. In the case of a conflict in the terms of the
LOC Documents and this Credit Agreement, the terms of this
Credit Agreement shall control.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender
and the Agent at least five (5) Business Days prior to the
requested date of issuance. The Issuing Lender will, at
least quarterly and more frequently upon request, provide to
the Agent for dissemination to the Lenders a detailed report
specifying the Letters of Credit which are then issued and
outstanding and any activity with respect thereto which may
have occurred since the date of the prior report, and
including therein, among other things, the account party,
the beneficiary, the face amount, expiry date as well as any
payments or expirations which may have occurred. The
Issuing Lender will further provide to the Agent promptly
upon request copies of the Letters of Credit. The Issuing
Lender will provide to the Agent prompt notice of any
changes in LOC Obligations issued by it, and more frequently
upon request, a summary report of the nature and extent of
LOC Obligations then outstanding.
(c) Participations. Each Lender, with respect to the
Existing Letters of Credit, hereby purchases a participation
interest in such Existing Letters of Credit and with respect
to Letters of Credit issued on or after the Closing Date,
upon issuance of a Letter of Credit, shall be deemed to have
purchased without recourse a risk participation from the
Issuing Lender in such Letter of Credit and the obligations
arising thereunder and any collateral relating thereto, if
any, in each case in an amount equal to its LOC Commitment
Percentage of the obligations under such Letter of Credit
and shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and be
obligated to pay to the Issuing Lender therefor and
discharge when due, its LOC Commitment Percentage of the
obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Lender's participation
in any Letter of Credit, to the extent that the Issuing
Lender has not been reimbursed as required hereunder or
under any LOC Document, each such Lender shall pay to the
Issuing Lender its LOC Commitment Percentage of such
unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed
drawing pursuant to the provisions of subsection (d) hereof.
The obligation of each Lender to so reimburse the Issuing
Lender shall be absolute and unconditional and shall not be
affected by the occurrence of a Default, an Event of Default
or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Lender under any Letter of
Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify
the Borrower and the Agent. The Borrower shall reimburse
the Issuing Lender on the day of drawing under any Letter of
Credit (either with the proceeds of a Swingline Loan or
Revolving Loan obtained hereunder or otherwise) in same day
funds as provided herein or in the LOC Documents. If the
Borrower shall fail to reimburse the Issuing Lender as
provided herein, the unreimbursed amount of such drawing
shall bear interest at a per annum rate equal to the Base
Rate plus two percent (2%). Unless the Borrower shall
immediately notify the Issuing Lender and the Agent of its
intent to otherwise reimburse the Issuing Lender, the
Borrower shall be deemed to have requested a Swingline Loan,
or if and to the extent Swingline Loans shall not be
available, a Revolving Loan in the amount of the drawing as
provided in subsection (e) hereof, the proceeds of which
will be used to satisfy the reimbursement obligations. The
Borrower's reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances
irrespective of any rights of set-off, counterclaim or
defense to payment the Borrower may claim or have against
the Issuing Lender, the Agent, the Lenders, the beneficiary
of the Letter of Credit drawn upon or any other Person,
including without limitation any defense based on any
failure of the Borrower to receive consideration or the
legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Lender will promptly notify
the other Lenders of the amount of any unreimbursed drawing
and each Lender shall promptly pay to the Agent for the
account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's LOC Commitment
Percentage of such unreimbursed drawing. Such payment shall
be made on the day such notice is received by such Lender
from the Issuing Lender if such notice is received at or
before 2:00 P.M. (Charlotte, North Carolina time), otherwise
such payment shall be made at or before 12:00 Noon
(Charlotte, North Carolina time) on the Business Day next
succeeding the day such notice is received. If such Lender
does not pay such amount to the Issuing Lender in full upon
such request, such Lender shall, on demand, pay to the Agent
for the account of the Issuing Lender interest on the unpaid
amount during the period from the date of such drawing until
such Lender pays such amount to the Issuing Lender in full
at a rate per annum equal to, if paid within two (2)
Business Days of the date of such request, the Federal Funds
Rate and thereafter at a rate equal to the Base Rate. Each
Lender's obligation to make such payment to the Issuing
Lender, and the right of the Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard
to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event
of Default or the acceleration of the Obligations hereunder
and shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which
the Borrower shall be deemed to have requested, (i) a
Swingline Loan borrowing to reimburse a drawing under a
Letter of Credit, the Swingline Lender shall make the
Swingline Loan advance pursuant to the terms of the request
or deemed request in accordance with the provisions for
Swingline Loan advances hereunder, or (ii) a Revolving Loan
to reimburse a drawing under a Letter of Credit, the Agent
shall give notice to the Lenders that a Revolving Loan has
been requested or deemed requested in connection with a
drawing under a Letter of Credit, in which case a Revolving
Loan borrowing comprised entirely of Base Rate Loans (each
such borrowing, a "Mandatory Borrowing") shall be
immediately made (without giving effect to any termination
of the Commitments pursuant to Section 9) pro rata based on
each Lender's respective Revolving Commitment Percentage
(determined before giving effect to any termination of the
Commitments pursuant to Section 9) and in the case of both
clauses (i) and (ii) the proceeds thereof shall be paid
directly to the Issuing Lender for application to the
respective LOC Obligations. Each Lender hereby irrevocably
agrees to make such Revolving Loans immediately upon any
such request or deemed request on account of each Mandatory
Borrowing in the amount and in the manner specified in the
preceding sentence and on the same such date notwithstanding
(i) the amount of Mandatory Borrowing may not comply with
the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (ii) whether any conditions
specified in Section 5.2 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) failure for
any such request or deemed request for Revolving Loan to be
made by the time otherwise required in Section 2.1(b), (v)
the date of such Mandatory Borrowing, or (vi) any reduction
in the Revolving Committed Amount after any such Letter of
Credit may have been drawn upon; provided, however, that in
the event any such Mandatory Borrowing should be less than
the minimum amount for borrowings of Revolving Loans
otherwise provided in Section 2.1(b)(ii), the Borrower shall
pay to the Agent for its own account an administrative fee
of $500. In the event that any Mandatory Borrowing cannot
for any reason be made on the date otherwise required above
(including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower or the Company), then each such
Lender hereby agrees that it shall forthwith fund (as of the
date the Mandatory Borrowing would otherwise have occurred,
but adjusted for any payments received from the Borrower on
or after such date and prior to such purchase) its
Participation Interests in the outstanding LOC Obligations;
provided, further, that in the event any Lender shall fail
to fund its Participation Interest on the day the Mandatory
Borrowing would otherwise have occurred, then the amount of
such Lender's unfunded Participation Interest therein shall
bear interest payable to the Issuing Lender upon demand, at
the rate equal to, if paid within two (2) Business Days of
any such request, the Federal Funds Rate, and thereafter at
a rate equal to the Base Rate.
(f) Modification, Extension. The issuance of any
supplement, modification, amendment, renewal, or extension
to any Letter of Credit shall, for purposes hereof, be
treated in all respects the same as the issuance of a new
Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender
shall have the Letters of Credit be subject to The Uniform
Customs and Practice for Documentary Credits, as published
as of the date of issue by the International Chamber of
Commerce (the "UCP"), in which case the UCP may be
incorporated therein and deemed in all respects to be a part
thereof.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law,
interest on the Loans and any other amounts owing hereunder or under
the other Credit Documents shall bear interest, payable on demand, at
a per annum rate 2% greater than the rate which would otherwise be
applicable (or if no rate is applicable, whether in respect of
interest, fees or other amounts, then 2% greater than the Base Rate).
3.2 Extension and Conversion.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to
convert Loans into Loans of another type; provided, however, that (i)
except as provided in Section 3.7, Eurodollar Loans may be converted
into Base Rate Loans only on the last day of the Interest Period
applicable thereto, (ii) Eurodollar Loans may be extended, and Base
Rate Loans may be converted into Eurodollar Loans, only if no Default
or Event of Default is in existence on the date of extension or
conversion, (iii) Loans extended as, or converted into, Eurodollar
Loans shall be subject to the terms of the definition of "Interest
Period" set forth in Section 1.1 and shall be in such minimum amounts
as provided in Section 2.1(b)(ii), (iv) no more than 20 separate
Eurodollar Loans shall be outstanding hereunder at any time, (v) any
request for extension or conversion of a Eurodollar Loan which shall
fail to specify an Interest Period shall be deemed to be a request for
an Interest Period of one month and (vi) Swingline Loans may not be
extended or converted pursuant to this Section 3.2. Each such
extension or conversion shall be effected by the Borrower by giving a
Notice of Extension/Conversion (or telephone notice promptly confirmed
in writing) to the Agent prior to 11:00 A.M. (Charlotte, North
Carolina time) on the Business Day of, in the case of the conversion
of a Eurodollar Loan into a Base Rate Loan and on the third Business
Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Base Rate Loan into, a Eurodollar Loan, the date of
the proposed extension or conversion, specifying the date of the
proposed extension or conversion, the Loans to be so extended or
converted, the types of Loans into which such Loans are to be
converted and, if appropriate, the applicable Interest Periods with
respect thereto. Each request for extension or conversion shall
constitute a representation and warranty by the Borrower of the
matters specified in subsections as appropriate (a) and (b), and in (c)
or (d) of Section 5.2. In the event the Borrower fails to request
extension or conversion of any Eurodollar Loan in accordance with this
Section, or any such conversion or extension is not permitted or
required by this Section, then such Loans shall be automatically
converted into Base Rate Loans at the end of their Interest Period.
The Agent shall give each Lender notice as promptly as practicable of
any such proposed extension or conversion affecting any Loan.
3.3 Reductions in Commitments and Prepayments.
(a) Voluntary Reduction in Revolving Commitment. The Borrower
may from time to time permanently reduce the aggregate amount of
the Revolving Commitments in whole or in part without premium or
penalty except as provided in Section 3.10 upon three (3)
Business Days' prior written notice to the Agent; provided that
after giving effect to any such voluntary reduction the sum of
Revolving Loans plus Swingline Loans plus LOC Obligations then
outstanding shall not exceed the Aggregate Revolving Committed
Amount, as reduced. Partial reductions in the aggregate
Revolving Commitment shall in each case be in a minimum aggregate
amount of $1,000,000 and integral multiples of $500,000 in excess
thereof.
(b) Mandatory Reductions in Revolving Commitments and Mandatory
Prepayments.
(i) Asset Sales and Dispositions. Other than with respect to
Specified Sales and transfers described in Section 8.4(a)(iii)
which shall not be subject to this subsection (i), the
aggregate amount of the Commitments (including for purposes
hereof, the aggregate amount of the Revolving Commitments and
the aggregate amount of the Term Loan then outstanding) shall
be automatically and permanently reduced by an aggregate amount
equal to 100% of the Net Proceeds received by the Borrower or
any its Subsidiaries from the sale, transfer or disposition of
assets or from a Recovery Event (to the extent such Net
Proceeds received in connection with a Recovery Event are not
reinvested as provided in Section 8.4(a)(ii)). The prepayments
made pursuant to this subsection (i) shall be applied as
provided in subsection (iv) hereof. Any payment owing
hereunder, whether in respect of the Revolving Loans or the
Term Loan on account of any such reduction in Commitments under
this subsection (i) shall be made to the Agent promptly (but in
any event within five (5) Business Days) following receipt by
the Borrower or a Subsidiary of the Net Proceeds therefrom
(taking into account any periods permitted for reinvestment
thereof as provided in Section 8.4(a)(ii)).
(ii) Equity Transactions. The aggregate amount of the
Commitments (including for purposes hereof, the aggregate
amount of the Revolving Commitments and the aggregate amount of
the Term Loan then outstanding) shall be automatically and
permanently reduced by an aggregate amount equal to 50% of the
Net Proceeds received by the Borrower or any its Subsidiaries
in connection with an Equity Transaction. The prepayments made
pursuant to this subsection (ii) shall be applied as provided
in subsection (iv) hereof. Any payment owing hereunder,
whether in respect of the Revolving Loans or the Term Loan on
account of any such reduction in Commitments under this
subsection (ii) shall be made to the Agent promptly (but in any
event within five (5) Business Days) following receipt by the
Borrower or a Subsidiary of the Net Proceeds therefrom.
(iii) Debt Transactions. The aggregate amount of the
Commitments (including for purposes hereof, the aggregate
amount of the Revolving Commitments and the aggregate amount of
the Term Loan then outstanding) shall be automatically and
permanently reduced by an aggregate amount equal to 100% of the
Net Proceeds received by the Borrower or any its Subsidiaries
in connection with a Debt Transaction. The prepayments made
pursuant to this subsection (iii) shall be applied as provided
in subsection (iv) hereof. Any payment owing hereunder,
whether in respect of the Revolving Loans or the Term Loan on
account of any such reduction in Commitments under this
subsection (iii) shall be made to the Agent promptly (but in
any event within five (5) Business Days) following receipt by
the Borrower or a Subsidiary of the Net Proceeds therefrom.
(iv) Application. In the case of mandatory reduction in the
Commitments by operation of subsections (i), (ii) or (iii)
hereof, the Commitments (including for purposes hereof, the
aggregate amount of the Revolving Commitments and the aggregate
amount of the Term Loan then outstanding) shall, be reduced as
follows:
First, prepayment shall be made on the Term Loan until paid in
full;
Second, the aggregate amount of the Revolving Commitment shall
be permanently reduced and the Revolving Loans outstanding
thereunder shall paid until reduced to zero; and
Third, the aggregate amount of the Revolving Commitment shall
be permanently reduced and payment shall be made to a cash
collateral account to secure outstanding LOC Obligations until
reduced to zero;
Mandatory payments made on the Term Loan in accordance with this
subsection (b) shall be made to principal installments in inverse
order of maturity. Payments made on or in respect of the Revolving
Commitments shall be applied first to the Swingline Loans, then to
Revolving Loans then outstanding until paid in full and then to a
cash collateral account in respect of the LOC Obligations. Payments
on Loans hereunder shall be applied first to Base Rate Loans and
then to Eurodollar Loans in direct order of their Interest Period
maturities.
(v) Mandatory Prepayment on Revolving Loans. If at any time the
sum of the aggregate amount of Revolving Loans plus Swingline
Loans plus LOC Obligations then outstanding shall exceed the
Aggregate Revolving Committed Amount, as reduced from time to
time, the Borrower shall immediately make payment on the
Swingline Loans and then the Revolving Loans and then to a cash
collateral account in respect of the LOC Obligations, in an
amount sufficient to eliminate the deficiency. Any such payments
shall be applied first to Base Rate Loans and then to Eurodollar
Loans in direct order of their Interest Period maturities.
(c) Voluntary Prepayments. Loans may be prepaid in whole or in
part without premium or penalty; provided that (i) Eurodollar
Loans may not be prepaid other than at the end of the Interest
Period applicable thereto and only then on three (3) Business
Days' prior written notice to the Agent, and (ii) each such
partial prepayment shall be in a minimum aggregate principal
amount of $1,000,000 and integral multiples of $500,000 in excess
thereof. Amounts prepaid on the Revolving Loans may be
reborrowed in accordance with the provisions hereof. Amounts
prepaid on the Term Loan shall be applied to principal
installments in inverse order of maturity and may not be
reborrowed.
(d) Notice. Except as otherwise provided herein, the Borrower
will provide notice to the Agent of any prepayment by 11:00 A.M.
(Charlotte, North Carolina time) on the day prior to the date of
prepayment.
3.4 Fees.
(a) Commitment Fee. In consideration of the Commitments by the
Lenders hereunder, the Borrower agrees to pay to the Agent for
the ratable benefit of the Lenders a commitment fee (the
"Commitment Fee") in an amount equal to the Applicable
Percentage per annum on the average daily unused portion of the
Revolving Committed Amount in effect from time to time. For
purposes of computing the Commitment Fee, Swingline Loans shall
not be considered usage under the Revolving Committed Amount.
The Commitment Fee shall be payable quarterly in arrears on the
15th day following the last day of each calendar quarter for
the prior calendar quarter and on the Termination Date.
(b) Letter of Credit Fee. In consideration of the issuance of
Letters of Credit hereunder, the Borrower or other Credit Party
agrees to pay to the Agent for the ratable benefit of the
Lenders a fee (the "Letter of Credit Fee") equal to the
Applicable Percentage per annum on the average daily maximum
amount available to be drawn under each Letter of Credit from
the date of issuance to the date of expiration. In addition to
the foregoing fee, the Borrower or other Credit Party shall pay
to the Issuing Lender for its own account without sharing by
the other Lenders an amount equal to one-eighth of one percent
(1/8%) per annum on the average daily maximum amount available to
be drawn under each Letter of Credit issued by such Issuing
Lender from the date of issuance to the date of expiration.
The Letter of Credit Fee will be payable quarterly in arrears
on the 15th day following the last day of each calendar quarter
and on the Termination Date.
(c) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (b) above, the Borrower
shall pay to the Issuing Lender for its own account without
sharing by the other Lenders the customary charges from time to
time of the Issuing Lender with respect to the issuance,
amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit
(collectively, the "Issuing Lender Fees").
(d) Agent's Fees. The Borrower agrees to pay to the Agent, for
its own account, the annual administrative fee, structuring fee
and other fees (collectively, the "Agent's Fees") referred to
in the Agent's Fee Letter.
3.5 Capital Adequacy.
If any Lender has reasonably determined that the adoption or
effectiveness of any applicable law, rule or regulation regarding
capital adequacy made after the date hereof, or any change therein
made after the date hereof, 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 made after the date hereof, or compliance by such Lender or
its parent company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency made after the date
hereof, has or would have the effect of reducing the rate of return on
such Lender's of its parent company's capital or assets as a
consequence of its commitments or obligations hereunder to a level
below that which such Lender could have achieved but for such
adoption, effectiveness, change or compliance (taking into
consideration the policies of such Lender and its parent company with
respect to capital adequacy), then, within 10 Business Days after the
Borrower's receipt of the certificate referred to in the next
sentence, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender and its parent company for
such reduction; provided that no such amounts shall be payable with
respect to reduction in rate of return incurred more than three (3)
months before such Lender demands compensation under this Section 3.5.
A certificate as to the amount of such reduction in rate of return,
the good faith basis therefor and setting forth in reasonable detail
the calculations used by the applicable Lender to arrive at the amount
or amounts claimed to be due, shall be submitted to the Borrower and
the Agent. Each determination by a Lender of amounts owing under this
Section shall be rebuttably presumptive evidence of the matters set
forth therein. The provisions of this Section shall survive
termination of this Credit Agreement and the payment of the Loans and
all other amounts payable hereunder.
3.6 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Agent shall have
reasonably determined (which determination shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, the Agent
shall give telecopy or telephonic notice thereof to the Borrower and
the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as Base Rate Loans, (y) any
Loans that were to have been converted on the first day of such
Interest Period to or continued as Eurodollar Loans shall be converted
to or continued as Base Rate Loans and (z) any outstanding Eurodollar
Loans shall be converted, on the first day of such Interest Period, to
Base Rate Loans. Until such notice has been withdrawn by the Agent,
no further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to convert Base Rate Loans to
Eurodollar Loans.
3.7 Illegality.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as
contemplated by this Credit Agreement, (a) such Lender shall promptly
give written notice of such circumstances to the Borrower and the
Agent (which notice shall be withdrawn whenever such circumstances no
longer exist), (b) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert a Base
Rate Loan to Eurodollar Loans shall forthwith be canceled and, until
such time as it shall no longer be unlawful for such Lender to make or
maintain Eurodollar Loans, such Lender shall then have a commitment
only to make a Base Rate Loan when a Eurodollar Loan is requested and
(c) such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Base Rate Loans on the respective
last days or the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 3.10.
8 .3 Requirements of Law.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or
compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if
later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind whatsoever
on or in respect of any Letter of Credit, letter of credit
application or any Eurodollar Loans made by it or its
obligation to make Eurodollar Loans, or change the basis of
taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by subsection 3.9 (including
Non-Excluded Taxes imposed solely by reason of any failure of
such Lender to comply with its obligations under subsection
3.9(b)) and changes in taxes measured by or imposed upon the
overall net income, or franchise tax (imposed in lieu of such
net income tax), of such Lender or its applicable lending
office, branch, or any affiliate thereof);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account
of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which
is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of
making, converting into, continuing or maintaining Eurodollar Loans or
to reduce any amount receivable hereunder in respect thereof, then, in
any such case, upon notice to the Borrower from such Lender, through
the Agent, in accordance herewith, the Borrower shall promptly pay
such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount
receivable, provided that, in any such case, the Borrower may elect to
convert the Eurodollar Loans made by such Lender hereunder to Base
Rate Loans by giving the Agent at least one Business Day's notice of
such election, in which case the Borrower shall promptly pay to such
Lender, upon demand, without duplication, such amounts, if any, as may
be required pursuant to subsection 3.10. If any Lender becomes
entitled to claim any additional amounts pursuant to this subsection,
it shall provide prompt notice thereof to the Borrower, through the
Agent, certifying (x) that one of the events described in this Section
3.8 has occurred and describing in reasonable detail the nature of
such event, (y) as to the increased cost or reduced amount resulting
from such event and (z) as to the additional amount demanded by such
Lender and a reasonably detailed explanation of the calculation
thereof. Such a certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender, through the
Agent, to the Borrower shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.9 Taxes.
(a) Except as provided below in this subsection, all payments
made by the Borrower under this Credit Agreement and any Notes
shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority,
excluding taxes measured by or imposed upon the overall net
income of any Lender or its applicable lending office, or any
branch or affiliate thereof, and all franchise taxes, branch
taxes, taxes on doing business or taxes on the overall capital or
net worth of any Lender or its applicable lending office, or any
branch or affiliate thereof, in each case imposed in lieu of net
income taxes, imposed: (i) by the jurisdiction under the laws of
which such Lender, applicable lending office, branch or affiliate
is organized or is located, or in which its principal executive
office is located, or any nation within which such jurisdiction
is located or any political subdivision thereof; or (ii) by
reason of any connection between the jurisdiction imposing such
tax and such Lender, applicable lending office, branch or
affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or
received payment under or enforced, this Credit Agreement or any
Notes. If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes")
are required to be withheld from any amounts payable to the Agent
or any Lender hereunder or under any Notes, (A) the amounts so
payable to the Agent or such Lender shall be increased to the
extent necessary to yield to the Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes, provided,
however, that the Borrower shall be entitled to deduct and
withhold any Non-Excluded Taxes and shall not be required to
increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by the Borrower, and (B) as
promptly as possible thereafter the Borrower shall send to the
Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, the
Borrower shall indemnify the Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable
by the Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of
this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X)(i) on or before the date of any payment by the
Borrower under this Credit Agreement or Notes to such
Lender, deliver to the Borrower and the Agent (A) two duly
completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case
may be, certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without deduction
or withholding of any United States federal income taxes and
(B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, certifying
that it is entitled to an exemption from United States
backup withholding tax;
(ii) deliver to the Borrower and the Agent two further
copies of any such form or certification on or before the
date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to
the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by
the Borrower or the Agent; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (i) represent to the
Borrower (for the benefit of the Borrower and the Agent) that it is
not a bank within the meaning of Section 881(c)(3)(A) of the Code,
(ii) agree to furnish to the Borrower on or before the date of any
payment by the Borrower, with a copy to the Agent (A) a certificate
substantially in the form of Schedule 3.10 (any such certificate a
"U.S. Tax Compliance Certificate") and (B) two accurate and
complete original signed copies of Internal Revenue Service Form W-
8, or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from
U.S. withholding tax under the provisions of Section 881(c) of the
Code with respect to payments to be made under this Credit Agreement
and any Notes (and to deliver to the Borrower and the Agent two
further copies of such form on or before the date it expires or
becomes obsolete and after the occurrence of any event requiring a
change in the most recently provided form and, if necessary, obtain
any extensions of time reasonably requested by the Borrower or the
Agent for filing and completing such forms), and (iii) agree, to the
extent legally entitled to do so, upon reasonable request by the
Borrower, to provide to the Borrower (for the benefit of the
Borrower and the Agent) such other forms as may be reasonably
required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments under this
Credit Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Borrower and the Agent.
Each Person that shall become a Lender or a participant of a Lender
pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection,
provided that in the case of a participant of a Lender the
obligations of such participant of a Lender pursuant to this
subsection (b) shall be determined as if the participant of a Lender
were a Lender except that such participant of a Lender shall furnish
all such required forms, certifications and statements to the Lender
from which the related participation shall have been purchased.
(c) In the event that any Lender requests payment by the
Borrower of any additional amounts pursuant to subsection (a) of
this Section 3.9, then, provided that no Default or Event of
Default has occurred and is continuing at such time, the Borrower
may, at its own expense (such expense to include any transfer fee
payable to the Agent under Section 11.6(b)), and in its sole
discretion require such Lender to transfer and assign in whole or
in part, without recourse (in accordance with and subject to the
terms and conditions of Section 11.6(b)), all or part of its
interests, rights and obligations under this Credit Agreement to
an Eligible Transferee which shall assume such assigned
obligations; provided that (i) such assignment shall not relieve
the Borrower from its obligations to pay such additional amounts
that may be due in accordance with subsection (a) of this Section
3.9, (ii) such assignment shall not conflict with any law, rule
or regulation or order of any court or other Governmental
Authority and (iii) the Borrower or such Eligible Transferee
shall have paid to the assigning Lender in immediately available
funds the principal of and interest accrued to the date of such
payment on the Loans made by it hereunder and all accrued Fees
and other amounts owed to it hereunder.
3.10 Indemnity.
The Borrower agrees to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or
incur (other than through such Lender's gross negligence or willful
misconduct) as a consequence of (a) default by the Borrower in making
a borrowing of, conversion into or continuation of Eurodollar Loans
after the Borrower has given a notice requesting the same in
accordance with the provisions of this Credit Agreement, (b) default
by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the
provisions of this Credit Agreement or (c) the making of a prepayment of
Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed,
converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the
last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the
applicable rate of interest for such Eurodollar Loans provided for
herein (excluding, however, the Applicable Percentage included
therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank Eurodollar market. This covenant
shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
3.11 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or prepayment of principal
of any Loan, each payment of interest on the Loans, each payment
of Commitment Fees, each reduction of the Revolving Committed
Amount and each conversion or extension of any Loan, shall be
allocated pro rata among the Lenders in accordance with the
respective Commitment Percentages relating to such respective
Loans and Participation Interests.
(b) Advances. Unless the Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will
not make the amount that would constitute its Commitment
Percentage of such borrowing available to the Agent, the Agent
may assume that such Lender is making such amount available to
the Agent, and the Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by such Lender within
the time period specified therefor hereunder, such Lender shall
pay to the Agent, on demand, such amount with interest thereon at
a rate equal to the Federal Funds Rate for the period until such
Lender makes such amount immediately available to the Agent. A
certificate of the Agent submitted to any Lender with respect to
any amounts owing under this subsection shall be conclusive in
the absence of manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Agent
by such Lender within two Business Days of the date of the
related borrowing, (i) the Agent shall notify the Borrower of the
failure of such Lender to make such amount available to the Agent
and the Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to Base Rate
Loans hereunder, on demand, from the Borrower and (ii) then the
Borrower may, without waiving any rights it may have against such
Lender, borrow a like amount on an unsecured basis from any
commercial bank for a period ending on the date upon which such
Lender does in fact make such borrowing available, provided that
at the time such borrowing is made and at all times while such
amount is outstanding the Borrower would be permitted to borrow
such amount pursuant to subsection 2.1 of this Credit Agreement.
3.12 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation
owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a
secured claim under Section 506 of Title 11 of the United States Code
or other security or interest arising from, or in lieu of, such
secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any
other means, in excess of its pro rata share of such payment as
provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans and
other obligations in such amounts, and make such other adjustments
from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares
as provided for in this Credit Agreement. The Lenders further agree
among themselves that if payment to a Lender obtained by such Lender
through the exercise of a right of setoff, banker's lien, counterclaim
or other event as aforesaid shall be rescinded or must otherwise be
restored, each Lender which shall have shared the benefit of such
payment shall, by repurchase of a participation theretofore sold,
return its share of that benefit (together with its share of any
accrued interest payable with respect thereto) to each Lender whose
payment shall have been rescinded or otherwise restored. The Borrower
agrees that any Lender so purchasing such a participation may, to the
fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
participation as fully as if such Lender were a holder of such Loan or
other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any Lender
or the Agent shall fail to remit to the Agent or any other Lender an
amount payable by such Lender or the Agent to the Agent or such other
Lender pursuant to this Credit Agreement on the date when such amount
is due, such payments shall be made together with interest thereon for
each date from the date such amount is due until the date such amount
is paid to the Agent or such other Lender at a rate per annum equal to
the Federal Funds Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section 3.12 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights of the
Lenders under this Section 3.12 to share in the benefits of any
recovery on such secured claim.
3.13 Place and Manner of Payments.
Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Agent in dollars in immediately
available funds, without offset, deduction, counterclaim or
withholding of any kind, at its offices at the Agent's office
specified in Schedule 11.2 not later than 2:00 P.M. (Charlotte, North
Carolina time) on the date when due. Payments received after such
time shall be deemed to have been received on the next succeeding
Business Day. The Agent may (but shall not be obligated to) debit the
amount of any such payment which is not made by such time to any
ordinary deposit account of the Borrower maintained with the Agent
(with notice to the Borrower). The Borrower shall, at the time it
makes any payment under this Credit Agreement, specify to the Agent
the Loans, Fees or other amounts payable by the Borrower hereunder to
which such payment is to be applied (and in the event that it fails so
to specify, or if such application would be inconsistent with the
terms hereof, the Agent shall distribute such payment to the Lenders
in such manner as the Agent may determine to be appropriate in respect
of obligations owing by the Borrower hereunder, subject to the terms
of Section 3.11). The Agent will distribute such payments to such
Lenders, if any such payment is received prior to 2:00 p.m.
(Charlotte, North Carolina time) on a Business Day in like funds as
received prior to the end of such Business Day and otherwise the Agent
will distribute such payment to such Lenders on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall
be extended to the next succeeding Business Day (subject to accrual of
interest and Fees for the period of such extension), except that in
the case of Eurodollar Loans, if the extension would cause the payment
to be made in the next following calendar month, then such payment
shall instead be made on the next preceding Business Day. Except as
expressly provided otherwise herein, all computations of interest and
fees shall be made on the basis of actual number of days elapsed over
a year of 360 days, except with respect to computation of interest on
Base Rate Loans which shall be calculated based on a year of 365 or
366 days, as appropriate. Interest shall accrue from and include the
date of borrowing, but exclude the date of payment.
3.14 Indemnification; Nature of Issuing Lender's Duties.
(a) In addition to its other obligations under Section 2.4, the
Borrower hereby agrees to protect, indemnify, pay and save each
Issuing Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing
Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B) the
failure of the Issuing Lender to honor a drawing under a Letter
of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government
or governmental authority (all such acts or omissions, herein
called "Government Acts").
(b) As between the Borrower and the Issuing Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuing Lender
shall not be responsible: (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective
for any reason; (iii) for failure of the beneficiary of a Letter
of Credit to comply fully with conditions required in order to
draw upon a Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether
or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission
or otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (vii)
for any consequences arising from causes beyond the control of
the Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Lender, under or in connection with any
Letter of Credit or the related certificates, if taken or omitted
in good faith, shall not put such Issuing Lender under any
resulting liability to the Borrower. It is the intention of the
parties that this Credit Agreement shall be construed and applied
to protect and indemnify the Issuing Lender against any and all
risks involved in the issuance of the Letters of Credit, all of
which risks are hereby assumed by the Borrower, including,
without limitation, any and all risks of the acts or omissions,
whether rightful or wrongful, of any present or future Government
Acts. The Issuing Lender shall not, in any way, be liable for
any failure by the Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Issuing Lender.
(d) Nothing in this Section 3.14 is intended to limit the
reimbursement obligation of the Borrower contained in Section
2.4(d) hereof. The obligations of the Borrower under this
Section 3.14 shall survive the termination of this Agreement. No
act or omissions of any current or prior beneficiary of a Letter
of Credit shall in any way affect or impair the rights of the
Issuing Lender to enforce any right, power or benefit under this
Credit Agreement.
(e) Notwithstanding anything to the contrary contained in this
Section 3.14, the Borrower shall have no obligation to indemnify
any Issuing Lender in respect of any liability incurred by such
Issuing Lender arising out of the gross negligence or willful
misconduct of the Issuing Lender (including action not taken by
an Issuing Lender), as determined by a court of competent
jurisdiction.
SECTION 4
GUARANTY
4.1 The Guaranty.
Each of the Credit Parties hereby jointly and severally guarantees to
each Lender, the Agent and the Issuing Lender as hereinafter provided
the prompt payment of the Credit Party Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Credit Parties
hereby further agree that if any of the Credit Party Obligations are
not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Credit Parties will, jointly and severally, promptly
pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the
Credit Party Obligations, the same will be promptly paid in full when
due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in
accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, the obligations of each Credit
Party hereunder 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 U.S. Bankruptcy Code or any
comparable provisions of any applicable state law.
4.2 Obligations Unconditional.
The obligations of the Credit Parties under Section 4.1 hereof are
joint and several, absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of any of
the Credit Documents, or any other agreement or instrument referred to
therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Credit Party Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor, it being
the intent of this Section 4.2 that the obligations of the Credit
Parties hereunder shall be absolute and unconditional under any and
all circumstances. Without limiting the generality of the foregoing,
it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of any Credit Party hereunder
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to any
Credit Party, the time for any performance of or compliance with
any of the Credit Party Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any of
the Credit Documents or any other agreement or instrument
referred therein shall be done or omitted;
(iii) the maturity of any of the Credit Party Obligations shall be
accelerated, or any of the Credit Party Obligations shall be
modified, supplemented or amended in any respect, or any right
under any of the Credit Documents or any other agreement or
instrument referred to therein shall be waived or any other
guarantee of any of the Credit Party Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any Lender
or Lenders as security for any of the Credit Party Obligations
shall fail to attach or be perfected; or
(v) any of the Credit Party Obligations shall be determined to
be void or voidable (including, without limitation, for the
benefit of any creditor of any Credit Party) or shall be
subordinated to the claims of any Person (including, without
limitation, any creditor of any Credit Party).
With respect to its obligations hereunder, each Credit Party hereby
expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Agent or any
Lender exhaust any right, power or remedy or proceed against any
Person under any of the Credit Documents or any other agreement or
instrument referred to therein, or against any other Person under any
other guarantee of, or security for, any of the Credit Party
Obligations.
4.3 Reinstatement.
The obligations of the Credit Parties under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Credit Party
Obligations is rescinded or must be otherwise restored by any holder
of any of the Credit Party Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and each
Credit Party agrees that it will indemnify the Agent and each Lender
on demand for all reasonable costs and expenses (including, without
limitation, fees of counsel) incurred by the Agent or such Lender in
connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
Without limiting the generality of the provisions of any other Section
of this Section 4, each Credit Party hereby specifically waives the
benefits of N.C. Gen. Stat. S 26-7 through 26-9, inclusive. Each
Credit Party further agrees that such Guarantor shall have no right of
recourse to security for the Credit Party Obligations. Each of the
Credit Parties further agrees that it shall have no right of
subrogation, reimbursement or indemnity, nor any right of recourse to
security, if any, for the Credit Party Obligations so long as any
amounts payable to the Agent, the Lenders or the Issuing Lender in
respect of the Credit Party Obligations shall remain outstanding and
until all of the Commitments shall have expired or been terminated.
4.5 Remedies.
The Guarantors agree that, as between the Credit Parties, on the one
hand, and the Agent, the Lenders and the Issuing Lender, on the other
hand, the Credit Party Obligations may be declared to be forthwith due
and payable as provided in Section 9 hereof (and shall be deemed to
have become automatically due and payable in the circumstances
provided in said Section 9) for purposes of Section 4.1 hereof
notwithstanding any stay, injunction or other prohibition preventing
such declaration (or preventing such Credit Party Obligations from
becoming automatically due and payable) as against any other Person
and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have become automatically due and
payable), such Credit Party Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by
the Credit Parties for purposes of said Section 4.1.
4.6 Continuing Guarantee.
The guarantee in this Section 4 is a continuing guarantee, and shall
apply to all Credit Party Obligations whenever arising.
SECTION 5
CONDITIONS
5.1 Conditions to Closing Date.
This Credit Agreement shall become effective upon the satisfaction of
the following conditions precedent:
(a) Execution of Agreement. The Agent shall have received (i)
multiple counterparts of this Credit Agreement for each Lender,
executed by a duly authorized officer of each party hereto and
(ii) for the account of each Lender a Revolving Note and a Term
Note and for the account of the Swingline Lender the Swingline
Note.
(b) Liability and Casualty Insurance. The Agent shall have
received copies of insurance policies or certificates of
insurance evidencing liability and casualty insurance meeting the
requirements set forth herein, together with evidence of payment
of premiums thereon.
(c) Financial Information. The Agent shall have received copies
of audited consolidated financial statements for the Borrower and
its Subsidiaries for fiscal years 1995 and 1996; interim
quarterly company-prepared consolidated financial statements for
the Borrower and its Subsidiaries for the fiscal quarter ended
June 30, 1997.
(d) Corporate Documents. The Agent shall have received the
following:
(i) Articles of Incorporation. Copies of the articles of
incorporation or charter documents of the Borrower and each of
the other Credit Parties certified to be true and complete as
of a recent date by the appropriate governmental authority of
the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the Board of
Directors of the Borrower and each of the other Credit Parties
approving and adopting the Credit Documents, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary as of
the Closing Date to be true and correct and in force and effect
as of such date.
(iii) Bylaws. A copy of the bylaws of the Borrower and each
of the other Credit Parties certified by a secretary or
assistant secretary as of the Closing Date to be true and
correct and in force and effect as of such date.
(iv) Good Standing. Copies of (i) certificates of good standing,
existence or its equivalent with respect to the Borrower and
each of the other Credit Parties certified as of a recent date
by the appropriate governmental authorities of the state of
incorporation and each other state in which the failure to so
qualify and be in good standing would have a material adverse
effect on the business or operations of the Borrower or other
Credit Party in such state and (ii) a certificate indicating
payment of all corporate franchise taxes certified as of a
recent date by the appropriate governmental taxing authorities.
(e) Officer's Certificate. The Agent shall have received, with
a counterpart for each Lender, a certificate of a duly authorized
officer of each of the Borrower and each of the other Credit
Parties dated the Effective Date, substantially in the form of
Schedule 5.1(j) with appropriate insertions and attachments.
(f) Legal Opinion of Counsel. The Agent shall have received,
with a copy for each Lender, an opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
counsel for the Borrower and the Guarantors, dated the Closing
Date and addressed to the Agent and the Lenders, in form and
substance satisfactory to the Agent and the Required Lenders.
(g) Fees. The Agent shall have received all fees, if any, owing
pursuant to the Agent's Fee Letter and Section 3.4.
(h) Subsection 5.2 Conditions. The conditions specified in
subsections 5.2(a) and (b) shall be satisfied on the Closing Date
as if Loans were to be made on such date.
(i) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated by this Credit
Agreement shall be reasonably satisfactory in form and substance
to the Agent and its counsel.
5.2 Conditions to All Extensions of Credit.
The obligation of each Lender to make any Extension of Credit
hereunder (including the initial Loans to be made hereunder) is
subject to the satisfaction of the following conditions precedent on
the date of making such Extension of Credit:
(a) Representations and Warranties. The representations and
warranties made by the Borrower and the other Credit Parties
herein or which are contained in any certificate furnished at any
time under or in connection herewith shall be true and correct in
all material respects on and as of the date of such Extension of
Credit as if made on and as of such date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or
after giving effect to the Extension of Credit to be made on such
date unless such Default or Event of Default shall have been
waived in accordance with this Credit Agreement.
(c) Additional Conditions to Revolving Loans. If such Loan is
made pursuant to subsection 2.1, all conditions set forth in such
subsection shall have been satisfied.
(d) Additional Conditions to Term Loan. If such Loan is made
pursuant to subsection 2.2 all conditions set forth in such
subsection shall have been satisfied.
(e) Additional Conditions to Swingline Loan. If such Loan is
made pursuant to subsection 2.3 all conditions set forth in such
subsection shall have been satisfied.
(f) Additional Conditions to Letters of Credit. If such
Extension of Credit is made pursuant to subsection 2.4 all
conditions set forth in such subsection shall have been
satisfied.
Each request for Extension of Credit and each acceptance by the
Borrower of an Extension of Credit shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such
Extension of Credit that the applicable conditions in paragraphs (a)
and (b), and in (c), (d), (e) or (f) of this subsection have been
satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Extensions of Credit herein provided for, each of the Credit Parties
hereby represents and warrants to the Agent and to each Lender that:
6.1 Financial Condition.
The consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at December 31, 1996 (audited annual) and June 30,
1997 (interim company-prepared), and the related consolidated
statements of income and of cash flows for the fiscal year (or portion
thereof) ended on such date, reported on (only in the case of such
annual statements) by Coopers & ▇▇▇▇▇▇▇ LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and
present fairly the consolidated financial condition of the Borrower
and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash
flows for the fiscal year (or portion thereof) then ended, subject in
the case of the June 30, 1997 interim company-prepared statements to
normal year end adjustments. All such financial statements, including
the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods
involved (except as disclosed therein). Neither the Borrower nor any
of its consolidated Subsidiaries had, at the date of the balance
sheets referred to above, any material Guaranty Obligation, contingent
liabilities or liability for taxes, long-term lease or unusual forward
or long-term commitment, including, without limitation, any material
interest rate or foreign currency swap or exchange transaction, which
is not reflected in the foregoing statements or in the notes thereto.
6.2 No Change.
Since December 31, 1996 there has been no development or event which
has had a Material Adverse Effect.
6.3 Corporate Existence; Compliance with Law.
Each of the Borrower and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate or partnership
power and authority and the legal right to own and operate all its
material property, to lease the material property it operates as
lessee and to conduct the business in which it is currently engaged, (c)
is duly qualified as a foreign corporation or partnership and in good
standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires
such qualification except to the extent that the failure to so qualify
or be in good standing would not, in the aggregate, have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would not,
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations .
Each of the Borrower and the other Credit Parties has full power and
authority and the legal right to make, deliver and perform the Credit
Documents to which it is party and has taken all necessary corporate
action to authorize the execution, delivery and performance by it of
the Credit Documents to which it is party. No consent or
authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution,
delivery or performance of any Credit Document by the Borrower or the
other Credit Parties(other than those which have been obtained) or
with the validity or enforceability of any Credit Document against the
Borrower or the Guarantors. Each Credit Document to which it is a
party has been duly executed and delivered on behalf of the Borrower
or the other Credit Parties, as the case may be. Each Credit Document
to which it is a party constitutes a legal, valid and binding
obligation of the Borrower or the Guarantors, as the case may be,
enforceable against the Borrower or the other Credit Parties, as the
case may be, in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.5 No Legal Bar; No Default.
The execution, delivery and performance of the Credit Documents, the
borrowings thereunder and the use of the proceeds of Extensions of
Credit will not violate any Requirement of Law or any Contractual
Obligation of the Borrower or its Subsidiaries (except those as to
which waivers or consents have been obtained), and will not result in,
or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any Requirement of
Law or Contractual Obligation other than the Liens arising under or
contemplated in connection with the Credit Documents. Neither the
Borrower nor any of its Subsidiaries is in default under or with
respect to any of its Contractual Obligations in any respect which
would reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
6.6 No Material Litigation.
Except as set forth in Schedule 6.6, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the best knowledge of the Borrower and the other Credit
Parties, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Credit Documents or any Loan or any
of the transactions contemplated hereby, or (b) which, if adversely
determined, would reasonably be expected to have a Material Adverse
Effect.
6.7 Investment Company Act.
Neither the Borrower nor any of the other Credit Parties is an
"investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940,
as amended.
6.8 Federal Regulations.
No part of the proceeds of any Loan hereunder will be used directly or
indirectly for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System as now and from time
to time hereafter in effect. The Borrower and its Subsidiaries taken
as a group do not own "margin stock" except as identified in the
financial statements referred to in Section 6.1 and the aggregate
value of all "margin stock" owned by the Borrower and its
Subsidiaries taken as a group does not exceed 25% of the value of
their assets.
6.9 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code, except to the extent that
any such occurrence or failure to comply would not reasonably be
expected to have a Material Adverse Effect. No termination of a
Single Employer Plan has occurred resulting in any liability that has
remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period which would reasonably be
expected to have a Material Adverse Effect. The present value of all
accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made
or deemed made, exceed the value of the assets of such Plan allocable
to such accrued benefits by an amount which, as determined in
accordance with GAAP, would reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Commonly Controlled
Entity is currently subject to any liability for a complete or partial
withdrawal from a Multiemployer Plan which would reasonably be
expected to have a Material Adverse Effect. For purposes of this
Section 6.9 only, the parties hereto agree that "Material Adverse
Effect" shall include any event referred to in this Section 6.9 which
would (or could be reasonably expected to) cause a reduction in
Consolidated Net Worth of ten percent (10%) or more.
6.10 Environmental Matters.
Except to the extent that all of the following, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of the Borrower and the other Credit
Parties, the facilities and properties owned, leased or operated
by the Borrower or any of its Subsidiaries (the "Properties") do
not contain any Materials of Environmental Concern in amounts or
concentrations which (i) constitute a violation of, or (ii) could
give rise to liability under, any Environmental Law.
(b) To the best knowledge of the Borrower and the other Credit
Parties, the Properties and all operations at the Properties are
in compliance, and have in the last five years been in
compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the
Borrower or any of its Subsidiaries (the "Business").
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-
compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor do the
Borrower nor the other Credit Parties have knowledge or reason to
believe that any such notice will be received or is being
threatened.
(d) To the best knowledge of the Borrower and the other Credit
Parties, Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of,
or in a manner or to a location which could give rise to
liability under any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower and the
other Credit Parties, threatened, under any Environmental Law to
which the Borrower or any Subsidiary is or will be named as a
party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business.
(f) To the best knowledge of the Borrower and the other Credit
Parties, there has been no release or threat of release of
Materials of Environmental concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in
a manner that could give rise to liability under Environmental
Laws.
6.11 Use of Proceeds.
Extensions of Credit hereunder may be used to (i) refinance certain
existing indebtedness of the Borrower, and (ii) provide for working
capital and other general corporate purposes, including acquisitions,
not prohibited by this Credit Agreement.
6.12 Subsidiaries.
Set forth on Schedule 6.12 is a complete and accurate list of all
Subsidiaries of the Borrower. Information on the attached Schedule
includes state of incorporation; the number of shares of each class of
capital stock or other equity interests outstanding; the number and
percentage of outstanding shares of each class of stock; and the
number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and similar rights. The outstanding
capital stock and other equity interests of all such Subsidiaries is
validly issued, fully paid and non-assessable and is owned, free and
clear of all Liens (other than those arising under or contemplated in
connection with the Credit Documents). Subject to the terms of this
Agreement, the Borrower may, from time to time, amend Schedule 6.12 by
delivering (effective upon receipt) to the Agent and each Lender a
copy of such amended Schedule 6.12 which shall (i) be dated the date
of delivery, (ii) be certified by a duly authorized officer of the
Borrower as true, complete and correct as of such date as delivered in
replacement for the Schedule 6.12 previously in effect, and (iii) show
in reasonable detail (by blacklining or other appropriate graphic
means) the changes from the predecessor Schedule 6.12.
6.13 Taxes.
Each of the Borrower and its Subsidiaries has filed, or caused to be
filed, all material tax returns (Federal, state, local and foreign)
required to be filed and paid all taxes shown thereon to be due
(including interest and penalties) and has paid all other taxes, fees,
assessments and other governmental charges (including mortgage
recording taxes, documentary stamp taxes and intangibles taxes) owing
by them, except for such taxes (i) which are not yet delinquent or
(ii) as are being contested in good faith and by proper proceedings,
and against which adequate reserves are being maintained in accordance
with GAAP. The Borrower is not aware of any proposed material tax
assessments against it or any of its Subsidiaries.
6.14 Solvency.
The Borrower and its Subsidiaries, both collectively and individually,
is and, after execution of this Credit Agreement and after giving
effect to the Indebtedness and Guarantee Obligations incurred
hereunder, will be Solvent.
SECTION 7
AFFIRMATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the
Closing Date, and thereafter for so long as this Credit Agreement is
in effect and until the Commitments have terminated, no Note or Letter
of Credit remains outstanding and unpaid and the Obligations, together
with interest, Commitment Fees and all other amounts owing to the
Agent or any Lender hereunder, are paid in full, the Borrower shall,
and in the case of subsections 7.3, 7.4, 7.5, 7.6, 7.7, 7.8 and 7.10
shall cause each of its Subsidiaries, to:
7.1 Financial Statements.
Furnish to the Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, but in
any event within 90 days after the end of each fiscal year of the
Borrower, a copy of the consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and
retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such year, audited by Coopers &
▇▇▇▇▇▇▇ or other firm of independent certified public accountants
of nationally recognized standing reasonably acceptable to the
Required Lenders, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification
indicating that the scope of the audit was inadequate to permit
such independent certified public accountants to certify such
financial statements without such qualification; and
(b) Quarterly Financial Statements. As soon as available and in
any event within 45 days after the end of each of the first three
fiscal quarters of the Borrower, a company-prepared consolidated
balance sheet of the Borrower and its consolidated Subsidiaries
as at the end of such period and related company-prepared
statements of income and retained earnings and of cash flows for
the Borrower and its consolidated Subsidiaries for such quarterly
period and for the portion of the fiscal year ending with such
period, in each case setting forth in comparative form
consolidated figures for the corresponding period or periods of
the preceding fiscal year (subject to normal recurring year-end
audit adjustments);
(c) Annual Budget Plan. As soon as available after approval by
the Borrower's Board of Directors, but in any event no more than
120 days after the end of each fiscal year, a copy of the
detailed annual budget or plan for the next fiscal year, in form
and detail reasonably acceptable to the Agent and the Required
Lenders, together with a summary of the material assumptions made
in the preparation of the budget or plan.
all such financial statements to be complete and correct in all
material respects (subject, in the case of interim statements, to
normal recurring year-end audit adjustments) and to be prepared in
reasonable detail and, in the case of the annual and quarterly
financial statements provided in accordance with subsections (a) and
(b) above, in accordance with GAAP applied consistently throughout the
periods reflected therein (except as approved by such accountants or
Responsible Officer, as the case may be, and disclosed therein) and
further accompanied by a description of, and an estimation of the
effect on the financial statements on account of, a change in the
application of accounting principles as provided in Section 1.3.
7.2 Certificates; Other Information.
Furnish to the Agent and each of the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a) above, a certificate of the
independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.1(a) and 7.1(b) above, a certificate of
a Responsible Officer stating that, to the best of such
Responsible Officer's knowledge, the Borrower during such period
observed or performed in all material respects all of its
covenants and other agreements, and satisfied in all material
respects every material condition, contained in this Agreement to
be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and such
certificate shall include the calculation required to indicate
compliance with Section 7.9;
(c) within thirty days after the same are sent, copies of all
reports (other than those otherwise provided pursuant to
subsection 7.1) and other financial information which the
Borrower sends to its stockholders, and within thirty days after
the same are filed, copies of all financial statements and non-
confidential reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) promptly, such additional financial and other information as
the Agent, at the request of any Lender, may from time to time
reasonably request.
7.3 Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, in accordance with
industry practice (subject, where applicable, to specified grace
periods) all its material obligations of whatever nature and any
additional costs that are imposed as a result of any failure to so
pay, discharge or otherwise satisfy such obligations (including
without limitation, obligations to pay taxes), except when the amount
or validity of such obligations and costs is currently being contested
in good faith by appropriate proceedings and reserves, if applicable,
in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now
conducted by it on the date hereof and preserve, renew and keep in
full force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business; comply with all
Contractual Obligations and Requirements of Law applicable to it
except to the extent that failure to comply therewith would not, in
the aggregate, have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance.
Keep all material property useful and necessary in its business in
good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies
insurance on all its material property in at least such amounts and
against at least such risks as are usually insured against in the same
general area by companies engaged in the same or a similar business;
and furnish to the Agent, upon written request, full information as to
the insurance carried; provided, however, that the Borrower and its
Subsidiaries may maintain self insurance plans to the extent companies
of similar size and in similar businesses do so.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its
businesses and activities; and permit, during regular business hours
and upon reasonable notice by the Agent, the Agent and, after the
occurrence and during the continuance of an Event of Default, any of
the Lenders to visit and inspect any of its properties and examine and
make abstracts from any of its books and records (other than materials
protected by the attorney-client privilege and materials which the
Borrower may not disclose without violation of a confidentiality
obligation binding upon it) at any reasonable time and as often as may
reasonably be desired, and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its
Subsidiaries and with its independent certified public accountants.
7.7 Notices.
Give notice to the Agent (which shall promptly transmit such notice to
each Lender) of:
(a) immediately (and in any event within two (2) Business Days)
after the Borrower knows or has reason to know thereof, the
occurrence of any Default or Event of Default;
(b) promptly, any default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries
or the Borrower which would reasonably be expected to have a
Material Adverse Effect;
(c) promptly, any litigation, or any investigation or proceeding
(including without limitation, any environmental proceeding)
known to the Borrower, affecting the Borrower or any of its
Subsidiaries or the Borrower which, if adversely determined,
would reasonably be expected to have a Material Adverse Effect;
(d) as soon as possible and in any event within 30 days after
the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution
to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan; and
(e) promptly, any other development or event which would
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower
proposes to take with respect thereto.
7.8 Environmental Laws.
(a) Comply in all material respects with, and ensure compliance
in all material respects by all tenants and subtenants, if any,
with, all applicable Environmental Laws and obtain and comply in
all material respects with and maintain, and ensure that all
tenants and subtenants obtain and comply in all material respects
with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws except to the extent that failure to do so
would not reasonably be expected to have a Material Adverse
Effect;
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to
the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings
would not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Agent and the
Lenders, and their respective employees, agents, officers and
directors, from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent
or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower,
any of its Subsidiaries or the Properties, or any orders,
requirements or demands of Governmental Authorities related
thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent
that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor.
The agreements in this paragraph shall survive repayment of the
Notes and all other amounts payable hereunder.
7.9 Financial Covenants.
(a) Debt Service Coverage Ratio. There shall be maintained as
of the end of each fiscal quarter a Debt Service Coverage Ratio
of at least 1.75:1.0.
(b) Consolidated Funded Debt Ratio. There shall be maintained
as of the end of each fiscal quarter to occur during the periods
shown below a Consolidated Funded Debt Ratio of not greater than:
Period
------
From the Closing Date through June 29, 1998 3.0:1.0
June 30, 1998 and thereafter 2.75:1.0.
(c) Consolidated Net Worth. There shall be maintained at all
times a Consolidated Net Worth of at least the lesser of (i)
$70,000,000 or (ii) an amount equal to 85% of Consolidated Net
Worth as of the end of fiscal year 1995; provided, however, that
the minimum Consolidated Net Worth required hereunder shall be
increased (but not decreased) on the last day of each fiscal year
by an amount equal to 50% of Consolidated Net Income for the
fiscal year then ended and on the date of receipt by the Borrower
or its Subsidiaries by an amount equal to 100% of the Net
Proceeds from any Equity Transaction.
7.10 Additional Subsidiary Guarantors.
Where Domestic Subsidiaries of the Borrower which are not Guarantors
hereunder (the "Non-Guarantor Domestic Subsidiaries") shall, as a
group, at any time constitute more than either
(i) one percent (1%), in any instance, or five percent (5%), in
the aggregate, of consolidated total assets, or
(ii) one percent (1%), in any instance, or five percent (5%), in
the aggregate, of Consolidated EBITDA,
(collectively, the "Threshold Requirement"), then the Borrower will
promptly notify the Agent thereof, and promptly cause one or more
Domestic Subsidiaries to become a "Guarantor" hereunder by way of
execution of a Joinder Agreement, such that immediately after the
joinder of such Subsidiaries as Guarantors hereunder, the remaining
Non-Guarantor Domestic Subsidiaries shall not, individually or as a
group, exceed the Threshold Requirement.
7.11 Interest Rate Protection.
At all times subsequent to the date which is 60 days after the Closing
Date, maintain in effect one or more Interest Protection Agreements
with any of the Lenders, or with other financial institutions
reasonably satisfactory to the Agent, the effect of which shall be to
limit the interest payable by the Borrower in connection with an
aggregate principal amount of at least 50% of the scheduled principal
amount of the Term Loan for a weighted average to maturity of not less
than three (3) years. Such Interest Protection Agreements shall be on
terms and conditions reasonably acceptable to the Agent. The Borrower
shall deliver from time to time to the Agent evidence of its
compliance with this subsection.
SECTION 8
NEGATIVE COVENANTS
Each of the Credit Parties hereby covenants and agrees that on the
Closing Date, and thereafter for so long as this Agreement is in
effect and until the Commitments have terminated, no Note or Letter of
Credit remains outstanding and unpaid and the Obligations, together
with interest, Commitment Fees and all other amounts owing to the
Agent or any Lender hereunder, are paid in full, the Borrower shall,
and shall cause each of its Subsidiaries and the Borrower, to:
8.1 Indebtedness.
The Borrower will not, nor will it permit any Subsidiary to, contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Agreement and
the other Credit Documents;
(b) Indebtedness existing as of the Closing Date and set out in
Schedule 8.1(b) and renewals, refinancings or extensions thereof
in a principal amount not in excess of that outstanding as of the
date of such renewal, refinancing or extension;
(c) Indebtedness incurred after the Closing Date consisting of
Capital Leases or Indebtedness incurred to provide all or a
portion of the purchase price or cost of construction of an asset
provided that (i) such Indebtedness when incurred shall not
exceed the purchase price or cost of construction of such asset;
(ii) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at
the time of such refinancing; and (iii) the total aggregate
amount of all such Indebtedness of the Borrower and its
subsidiaries, as a group, shall not exceed $10,000,000 at any
time outstanding;
(d) Unsecured intercompany Indebtedness between a Credit Party
and another Credit Party;
(e) Indebtedness and obligations owing under Interest Protection
Agreements relating to the Loans hereunder and currency
protection agreements and commodity purchase or option agreements
entered into in order to manage existing or anticipated interest
rate, exchange rate or commodity price risks and not for
speculative purposes;
(f) Subordinated Debt of the Borrower the terms of subordination
and other terms and provisions of which are acceptable to the
Required Lenders in their reasonable discretion (the proceeds of
which shall be subject to the provisions of Section 3.3(b)(iii));
(g) Guarantee Obligations of a Credit Party relating to
Indebtedness of another Domestic Credit Party otherwise permitted
under this Section 8.1;
(h) Public or privately placed unsecured senior Funded Debt in
an aggregate amount up to $100,000,000 at any time outstanding
(subject to the provisions of Section 3.3(b)(iii) hereof);
(i) Indebtedness incurred by a Credit Party in connection with a
Permitted Sale-Leaseback Transaction, provided that the aggregate
amount of such Indebtedness shall not exceed $20,000,000 at any
time outstanding;
(j) Indebtedness (including, but without duplication for,
related letters of credit) relating to industrial revenue bond or
other similar tax-advantaged financing assumed by the Borrower in
connection with the acquisition of SerVend International, Inc.
which does not exceed at any time $6,600,000 in the aggregate;
and
(k) other Indebtedness of the Borrower and its Subsidiaries, as
a group, which does not exceed $10,000,000 in the aggregate at
any time outstanding.
8.2 Liens.
The Borrower will not, nor will it permit any Subsidiary to, contract,
create, incur, assume or permit to exist any Lien with respect to any
of its property or assets of any kind (whether real or personal,
tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
8.3 Nature of Business.
The Borrower will not, nor will it permit any Subsidiary to, alter the
character of its business in any material respect from that conducted
as of the Closing Date.
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
The Borrower will not, nor will it permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell, transfer,
lease or otherwise dispose of any substantial part of its
property or assets outside of the ordinary course of business or
agree to do so at a future time except the following, without
duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of property
or assets not in the ordinary course of business (other than
Specified Sales), where and to the extent that such transaction
is the result of a Recovery Event and the Net Proceeds
therefrom are used to repair or replace damaged property or to
purchase or otherwise acquire new assets or property provided
that such purchase or acquisition is committed to within 180
days of receipt of the Net Proceeds from the Recovery Event and
such purchase or acquisition is consummated within 270 days of
such receipt; and
(iii) the sale, lease or transfer of property or assets by a
Credit Party other than the Borrower to a domestic Credit
Party.
As used herein, "substantial part" shall mean property and assets,
the book value of which, when added to the book value of all other
assets sold, leased or otherwise disposed of by the Borrower and its
Subsidiaries (other than in the ordinary course of business),
(i) shall in any fiscal year exceed 10% of Consolidated Net
Worth; or
(ii) shall from the Closing Date exceed 25% of Consolidated Net
Worth;
in each case determined as of the end of the immediately preceding
fiscal year; or
(b) enter into any transaction of merger or consolidation,
provided, however, that so long as no Default or Event of Default
would be directly or indirectly caused as a result thereof,
(i) a Domestic Subsidiary may merge or consolidate with another
Domestic Subsidiary, provided that (A) the Borrower shall be
the surviving entity if it is a party thereto, and (B) a
Domestic Credit Party shall be the surviving entity if it is a
party thereto or the surviving entity becomes a Domestic Credit
Party pursuant to the terms of Section 7.10(a) immediately
after the consummation of such merger or consolidation;
(ii) a Foreign Subsidiary may merge or consolidate with any other
Foreign Subsidiary;
(iii) a Foreign Subsidiary may merge or consolidate with a
Domestic Subsidiary, provided that the Domestic Subsidiary
shall be the surviving entity and the applicable conditions set
forth in Section 7.10 are complied with in connection
therewith; and
(iv) a Subsidiary may merge or consolidate with any Person that
is not a Subsidiary, provided that (A) the applicable
conditions set forth in Section 7.10 and Section 8.4(c) are
complied with in connection with such acquisition by merger or
consolidation and (B) the Board of Directors of the Person that
is the subject of the acquisition, merger or consolidation
shall have consented to and approved the acquisition, merger or
consolidation.
(c) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) (i) all or any
portion of the capital stock or securities of any other Person or
(ii) all or any substantial part of the property or assets of any
other Person, unless:
(A) where the aggregate cost (including all cash paid, seller
financing provided, debt assumed and stock transferred in
respect thereof) of any such individual acquisition shall not
exceed $75,000,000;
(B) where the aggregate cost (including all cash paid, seller
financing provided, debt assumed and stock transferred in
respect thereof) of all such acquisitions shall not exceed
$100,000,000 in any calendar year;
(C) if after giving effect thereto such Person is not a
Subsidiary, such acquisition is permitted pursuant to Section
8.5; and
(D) no Default or Event of Default would exist after giving
effect to any such acquisition on a Pro Forma Basis.
8.5 Advances, Investments and Loans.
The Borrower will not, nor will it permit any Subsidiary to, lend
money or extend credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest
in, or make any capital contribution to, any Person except for
Permitted Investments.
8.6 Transactions with Affiliates.
Except as permitted in subsection (iv) of the definition of Permitted
Investments, the Borrower will not, nor will it permit any Subsidiary
to, enter into any transaction or series of transactions, whether or
not in the ordinary course of business, with any officer, director,
shareholder or Affiliate other than on terms and conditions
substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer,
director, shareholder or Affiliate.
8.7 Ownership of Subsidiaries.
The Borrower will not, nor will it permit any Subsidiary to, create,
form or acquire a Subsidiary, unless any such domestic Subsidiary
shall become an Additional Credit Party in accordance with the
provisions of Section 7.10, or the investment in any such foreign
Subsidiary shall constitute a Permitted Investment.
8.8 Fiscal Year.
The Borrower will not, nor will it permit any Subsidiary to, change
its fiscal year, except with the prior written consent of the Agent.
8.9 Prepayments of Indebtedness, etc.
The Borrower will not, nor will it permit any Subsidiary to,
(a) after the issuance thereof, amend or modify, or permit the
amendment or modification of, any of the terms of subordination
or other terms or provisions relating to any senior Indebtedness
for borrowed money or Subordinated Debt if such amendment or
modification is reasonably adverse to interests of the Lenders as
determined by Required Lenders in their discretion;
(b) make (or give notice with respect thereto) any voluntary or
optional payment or prepayment or redemption or acquisition for
value (including, without limitation, by way of depositing money
or securities with the trustee with respect thereto before due
for the purpose of paying when due) or exchange of any senior
Indebtedness for borrowed money or Subordinated Debt permitted
pursuant to Section 8.1, except to the extent repaid from the Net
Proceeds of any Equity Transaction; or
(c) make any prepayment, redemption, acquisition for value of
(including, without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for
the purpose of paying when due) refund, refinance or exchange of
any Subordinated Debt;
As used herein, "Subordinated Debt" means any indebtedness for
borrowed money which by its terms is, or upon the happening of certain
events may become, subordinated in right of payment to the Obligations
hereunder and other amounts owing hereunder or in connection herewith.
8.10 Dividends.
The Borrower will not, nor will it permit any non-wholly-owned
Subsidiaries to, make any payment, distribution or dividend (other
than a dividend or distribution payable solely in stock or equity
interest of the Person making the dividend or distribution) on or any
payment on account of the purchase, redemption or retirement of, or
any other distribution on, any partnership interest, share of any
class of stock or other ownership interest in such Person, if and to
the extent that a Default or Event of Default shall exist or would
exist after giving effect thereto.
8.11 Foreign Assets.
No more than twenty-five percent (25%) of assets of the Borrower and
its Subsidiaries, taken as a whole on a consolidated basis, will at
any time be held by Foreign Subsidiaries.
SECTION 9
EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Borrower shall fail to pay any principal on any Note
when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to reimburse the Issuing Lender for any LOC
Obligations when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Note or any fee or
other amount payable hereunder when due in accordance with the
terms thereof or hereof and such failure shall continue
unremedied for five (5) Business Days (or any Guarantor shall
fail to pay on the Guaranty in respect of any of the foregoing or
in respect of any other Guarantee Obligations thereunder); or
(b) Any representation or warranty made or deemed made by the
Borrower or other Credit Party herein or in any of the other
Credit Documents or which is contained in any certificate,
document or financial or other statement furnished at any time
under or in connection with this Agreement shall prove to have
been incorrect, false or misleading in any material respect on or
as of the date made or deemed made; or
(c) The Borrower shall (i) default in the due performance or
observance of Section 7.7, 7.9 or 8.10, or (ii) default in the
observance or performance of any other term, covenant or
agreement contained in this Agreement (other than as described in
subsections 9(a), 9(b) or 9(c)(i) above), and such default shall
continue unremedied for a period of 30 days or more; or
(d) The Borrower or any of its Subsidiaries shall (i) default in
any payment of principal of or interest on any Indebtedness
(other than the Notes) in a principal amount outstanding of at
least $2,000,000 in the aggregate for the Borrower and its
Subsidiaries or in the payment of any matured Guarantee
Obligation in a principal amount outstanding of at least
$2,000,000 in the aggregate for the Borrower and its Subsidiaries
beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default
in the observance or performance of any other agreement or
condition relating to any such Indebtedness in a principal amount
outstanding of at least $2,000,000 in the aggregate for the
Borrower and its Subsidiaries or Guarantee Obligation in a
principal amount outstanding of at least $2,000,000 in the
aggregate for the Borrower and its Subsidiaries or contained in
any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause,
or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable; or
(e) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it,
or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for
all or any substantial part of its assets, or the Borrower or any
Subsidiary shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower
or any Subsidiary any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any Subsidiary any case, proceeding other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part
of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed
or bonded pending appeal within 60 days from the entry thereof;
or (iv) the Borrower or any Subsidiary shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii),
or (iii) above; or (v) the Borrower or any Subsidiary shall
generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or
(f) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the
aggregate a liability (to the extent not paid when due or covered
by insurance) of $2,000,000 or more and all such judgments or
decrees shall not have been paid and satisfied, vacated,
discharged, stayed or bonded pending appeal within 60 days from
the entry thereof; or
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency"
(as defined in Section 302 of ERISA), whether or not waived,
shall exist with respect to any Plan or any Lien in favor of the
PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a Trustee is, in
the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, (v) the Borrower, any of its Subsidiaries
or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or
Reorganization of, any Multiemployer Plan or (vi) any other
similar event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or
conditions, if any, could have a Material Adverse Effect; or
(h) Either (i) a "person" or a "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934 other than members of management of the Borrower as of the
Closing Date) becomes the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934) of more than 30%
of the then outstanding voting stock of the Borrower or (ii) a
majority of the Board of Directors of the Borrower shall consist
of individuals who are not Continuing Directors; "Continuing
Director" means, as of any date of determination, (A) an
individual who on the date two years prior to such determination
date was a member of the Borrower's Board of Directors or (B) any
new Director whose nomination for election by the Borrower's
shareholders was approved by a vote of at least 75% of the
Directors then still in office who either were Directors on the
date two years prior to such determination date or whose
nomination for election was previously so approved; or
(i) The Guaranty or any provision thereof shall cease to be in
full force and effect or any Credit Party or any Person acting by
or on behalf of any Credit Party shall deny or disaffirm any
Credit Party's obligations under the Guaranty; or
(j) Any other Credit Document shall fail to be in full force and
effect or to give the Agent and/or the Lenders the security
interests, liens, rights, powers and privileges purported to be
created thereby (except as such documents may be terminated or no
longer in force and effect in accordance with the terms thereof,
other than those indemnities and provisions which by their terms
shall survive);
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (e) above, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon),
and all other amounts under the Credit Documents (including without
limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the written consent of the
Required Lenders, the Agent may, or upon the written request of the
Required Lenders, the Agent shall, by notice to the Borrower declare
the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) the Agent may, or upon the
written request of the Required Lenders, the Agent shall, by notice of
default to the Borrower, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the
Notes to be due and payable forthwith and direct the Borrower to pay
to the Agent cash collateral as security for the LOC Obligations for
subsequent drawings under then outstanding Letters of Credit an amount
equal to the maximum amount of which may be drawn under Letters of
Credit then outstanding, whereupon the same shall immediately become
due and payable. Except as expressly provided above in this Section
9, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
Each Lender hereby designates and appoints NationsBank, N.A. as
administrative agent (in such capacity as Agent hereunder, the
"Agent") of such Lender to act as specified herein and the other
Credit Documents, and each such Lender hereby authorizes the Agent as
the agent for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and
to exercise such powers and perform such duties as are expressly
delegated by the terms hereof and of the other Credit Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere herein and in
the other Credit Documents, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein,
or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Credit Agreement or any of the
other Credit Documents, or shall otherwise exist against the Agent.
The provisions of this Section are solely for the benefit of the Agent
and the Lenders and none of the Credit Parties shall have any rights
as a third party beneficiary of the provisions hereof. In performing
its functions and duties under this Credit Agreement and the other
Credit Documents, the Agent shall act solely as agent of the Lenders
and does not assume and shall not be deemed to have assumed any
obligation or relationship of agency or trust with or for the Borrower
or any other Credit Party. The title of Documentation Agent is
bestowed in recognition of the Documentation Agent's participation in
this credit, and such title shall not impose or imply any duties or
responsibilities hereunder of a fiduciary nature or otherwise, in its
capacity as such.
10.2 Delegation of Duties.
The Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions.
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person
under or in connection herewith or in connection with any of the other
Credit Documents (except for its or such Person's own gross negligence
or willful misconduct), or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or
warranties made by any of the Credit Parties contained herein or in
any of the other Credit Documents or in any certificate, report,
statement or other document referred to or provided for in, or
received by the Agent under or in connection herewith or in connection
with the other Credit Documents, or enforceability or sufficiency
herefor of any of the other Credit Documents, or for any failure of
the Borrower to perform its obligations hereunder or thereunder. The
Agent shall not be responsible to any Lender for the effectiveness,
genuineness, validity, enforceability, collectability or sufficiency
of this Credit Agreement, or any of the other Credit Documents or for
any representations, warranties, recitals or statements made herein or
therein or made by the Borrower or any Credit Party in any written or
oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or
therewith furnished or made by the Agent to the Lenders or by or on
behalf of the Credit Parties to the Agent or any Lender or be required
to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained
herein or therein or as to the use of the proceeds of the Loans or of
the existence or possible existence of any Default or Event of Default
or to inspect the properties, books or records of the Credit Parties.
10.4 Reliance on Communications.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation,
counsel to the Borrower or any of the other Credit Parties,
independent accountants and other experts selected by the Agent with
reasonable care). The Agent may deem and treat the Lenders as the
owner of their respective interests hereunder for all purposes unless
a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Agent in accordance with Section 11.6(d).
The Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder
or under any of the other Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically
provided in Section 11.1, all the Lenders) and such request and any
action taken or failure to act pursuant thereto shall be binding upon
all the Lenders (including their successors and assigns).
10.5 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Agent has received notice from a Lender or a Credit Party referring to
the Credit Document, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event that
the Agent receives such a notice, the Agent shall give prompt notice
thereof to the Lenders. The Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by
the Required Lenders.
10.6 Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that
no act by the Agent or any affiliate thereof hereinafter taken,
including any review of the affairs of the Borrower, shall be deemed
to constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender,
and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower and made
its own decision to make its Loans hereunder and enter into this
Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this
Credit Agreement, and to make such investigation as it deems necessary
to inform itself as to the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business,
operations, assets, property, financial or other conditions, prospects
or creditworthiness of the Borrower which may come into the possession
of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages (or if the Commitments have expired
or been terminated, in accordance with the respective principal
amounts of outstanding Loans and Participation Interests of the
Lenders), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the termination of
this Credit Agreement) be imposed on, incurred by or asserted against
the Agent in its capacity as such in any way relating to or arising
out of this Credit Agreement or the other Credit Documents or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or
omitted by the Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of the Agent. If any indemnity
furnished to the Agent for any purpose shall, in the opinion of the
Agent, be insufficient or become impaired, the Agent may call for
additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
10.8 Agent in its Individual Capacity.
The Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower or any
other Credit Party as though the Agent were not Agent hereunder. With
respect to its Loans and Participation Interests, the Agent shall have
the same rights and powers under this Credit Agreement as any Lender
and may exercise the same as though they were not Agent, and the terms
"Lender" and "Lenders" shall include the Agent in its individual
capacity.
10.9 Successor Agent.
The Agent may, at any time, resign upon 20 days' written notice to the
Lenders. Upon any such resignation, the Required Lenders shall have
the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the notice of
resignation, as appropriate, then the retiring Agent shall select a
successor Agent provided such successor is a Lender hereunder or a
commercial bank organized under the laws of the United States of
America or of any State thereof and has a combined capital and surplus
of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations as Agent, as appropriate,
under this Credit Agreement and the other Credit Documents and the
provisions of this Section 10.9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under
this Credit Agreement.
SECTION 11
MISCELLANEOUS
11.1 Amendments and Waivers.
Neither this Credit Agreement, nor any of the Notes, nor any of the
other Credit Documents, nor any terms hereof or thereof may be
amended, supplemented, waived or modified except in accordance with
the provisions of this subsection. The Required Lenders may, or, with
the written consent of the Required Lenders, the Agent may, from time
to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the other Credit Documents
for the purpose of adding any provisions to this Credit Agreement or
the other Credit Documents or (b) waive, on such terms and conditions
as the Required Lenders may specify in such instrument, any of the
requirements of this Credit Agreement or the other Credit Documents or
any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, waiver,
supplement, modification or release shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan or Note or any
installment thereon, or reduce the stated rate of any interest or fee
payable hereunder (other than interest at the increased post-default
rate) or extend the scheduled date of any payment thereof or increase
the amount or extend the expiration date of any Lender's Commitment,
in each case without the written consent of each Lender directly
affected thereby, or (ii) amend, modify or waive any provision of this
subsection or reduce the percentage specified in the definition of
Required Lenders, or consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Credit
Agreement, in each case without the written consent of all the
Lenders, or (iii) amend, modify or waive any provision of Section 10
without the written consent of the then Agent, or (iv) release all or
substantially all of the Guarantors without the written consent of all
of the Lenders. Any such waiver, any such amendment, supplement or
modification and any such release shall apply equally to each of the
Lenders and shall be binding upon the Borrower, the Lenders, the Agent
and all future holders of the Notes. In the case of any waiver, the
Borrower, the Lenders and the Agent shall be restored to their former
position and rights hereunder and under the outstanding Loans and
Notes and other Credit Documents, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
11.2 Notices
Except as otherwise provided in Section 2, all notices, requests and
demands to or upon the respective parties hereto to be effective shall
be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made (i)
when delivered by hand, (ii) when transmitted via telecopy (or other
facsimile device) on a Business Day between the hours of 8:30 A.M. and
7:00 P.M. (EST or EDT, as appropriate) (or on the following Business
Day if sent after 7:00 P.M.) to the number set out herein, (iii) the
day following the day on which the same has been delivered prepaid to
a reputable national overnight air courier service, or (iv) the third
Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case, addressed as
follows in the case of the Borrower and the Agent, and as set forth on
Schedule 11.2 in the case of the Lenders, or to such other address as
may be hereafter notified by the respective parties hereto and any
future holders of the Notes:
The Credit Parties: c/o The Manitowoc Company, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 66
Manitowoc, Wisconsin 54221-0066
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Agent: NationsBank, N.A.
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
NationsBank, N.A.
Sears Tower, Suite 2800
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
11.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Agent or any Lender, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Credit
Agreement and the Notes and the making of the Loans, provided that all
such representations and warranties shall terminate on the date upon
which the Commitments have been terminated and all amounts owing
hereunder and under any Notes have been paid in full.
11.5 Payment of Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection
with the preparation and execution of, and any amendment, supplement
or modification to, the Credit Documents and any other documents
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby,
together with the reasonable fees and disbursements of counsel to the
Agent, (b) to pay or reimburse each Lender and the Agent for all its
costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Credit Agreement, the Notes and
any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent and to the
Lenders (including reasonable allocated costs of in-house legal
counsel), and (c) on demand, to pay, indemnify, and hold each Lender and
the Agent harmless from, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution
and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the
Credit Documents and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Agent and their Affiliates
harmless from and against, any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of
the Credit Documents and any such other Documents and the use, or
proposed use, of proceeds of the Loans (all the foregoing,
collectively, the "indemnified liabilities"); provided, however, that
the Borrower shall not have any obligation hereunder to the Agent or
any Lender with respect to indemnified liabilities arising from (i)
the gross negligence or willful misconduct of the Agent or any such
Lender, (ii) legal proceedings commenced against the Agent or any
Lender by any other Lender or its participants or the Agent or (iii) a
breach of any of the Credit Documents by the Lenders. The agreements
in this subsection shall survive repayment of the Loans, Notes and all
other amounts payable hereunder.
11.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Credit Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agent, all future
holders of the Notes and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its
rights or obligations under this Credit Agreement or the other
Credit Documents without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such
Lender, or any other interest of such Lender hereunder. In the
event of any such sale by a Lender of participating interests to
a Participant, such Lender's obligations under this Credit
Agreement to the other parties to this Credit Agreement shall
remain unchanged, such Lender shall remain solely responsible for
the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Credit Agreement, and
the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights
and obligations under this Credit Agreement. No Lender shall
transfer or grant any participation under which the Participant
shall have rights to approve any amendment to or waiver of this
Credit Agreement or any other Credit Document except to the
extent such amendment or waiver would (i) extend the scheduled
maturity of any Loan or Note or any installment thereon in which
such Participant is participating, or reduce the stated rate or
extend the time of payment of interest or Fees thereon (except in
connection with a waiver of interest at the increased post-
default rate) or reduce the principal amount thereof, or increase
the amount of the Participant's participation over the amount
thereof then in effect (it being understood that a waiver of any
Default or Event of Default shall not constitute a change in the
terms of such participation, and that an increase in any
Commitment or Loan shall be permitted without consent of any
Participant if the Participant's participation is not increased
as a result thereof), or (ii) consent to the assignment or
transfer by the Borrower of any of its rights and obligations
under this Credit Agreement. In the case of any such
participation, the Participant shall not have any rights under
this Credit Agreement or any of the other Credit Documents (the
Participant's rights against such Lender in respect of such
participation to be those set forth in the agreement executed by
such Lender in favor of the Participant relating thereto) and all
amounts payable by the Borrower hereunder shall be determined as
if such Lender had not sold such participation, provided that
each Participant shall be entitled to the benefits of subsections
3.6, 3.7, 3.8, 3.9 and 11.5 with respect to its participation in
the Commitments and the Loans outstanding from time to time;
provided, that no Participant shall be entitled to receive any
greater amount pursuant to such subsections than the transferor
Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any
time sell or assign to any Lender or any affiliate thereof and
with the consent of the Agent and, so long as no Event of Default
has occurred and is continuing, the consent of the Borrower
(which consents shall not be unreasonably withheld), to one or
more additional banks or financial institutions ("Purchasing
Lenders"), all or any part of its rights and obligations under
this Credit Agreement and the Notes in minimum amounts of
$10,000,000 (or, if less, the entire amount of such Lender's
obligations) if the Purchasing Lender is not a Lender hereunder,
or with no minimum amount if the Purchasing Lender is a Lender
hereunder, pursuant to a Commitment Transfer Supplement, executed
by such Purchasing Lender, such transferor Lender (and, in the
case of a Purchasing Lender that is not then a Lender or an
affiliate thereof so long as no Event of Default has occurred and
is continuing, by the Borrower and the Agent), and delivered to
the Agent for its acceptance and recording in the Register. Upon
such execution, delivery, acceptance and recording, from and
after the Transfer Effective Date specified in such Commitment
Transfer Supplement, (x) the Purchasing Lender thereunder shall
be a party hereto and, to the extent provided in such Commitment
Transfer Supplement, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the
transferor Lender thereunder shall, to the extent provided in
such Commitment Transfer Supplement, be released from its
obligations under this Credit Agreement (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under
this Credit Agreement, such transferor Lender shall cease to be a
party hereto). Such Commitment Transfer Supplement shall be
deemed to amend this Credit Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Purchasing
Lender and the resulting adjustment of Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender
under this Credit Agreement and the Notes. On or prior to the
Transfer Effective Date specified in such Commitment Transfer
Supplement, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the Note delivered to the
Agent pursuant to such Commitment Transfer Supplement a new Note
to the order of such Purchasing Lender in an amount equal to the
Commitment assumed by it pursuant to such Commitment Transfer
Supplement and, unless the transferor Lender has not retained a
Commitment hereunder, a new Note to the order of the transferor
Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note shall be dated the Closing Date and
shall otherwise be in the form of the Note replaced thereby.
The Note surrendered by the transferor Lender shall be returned
by the Agent to the Borrower marked "canceled".
(d) The Agent shall maintain at its address referred to in
subsection 11.2 a copy of each Commitment Transfer Supplement
delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower,
the Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded
therein for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrower or any Lender
at any reason able time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Lender and a Purchasing Lender (and, in
the case of a Purchasing Lender that is not then a Lender or an
affiliate thereof, by the Borrower and the Agent) together with
payment to the Agent (by the transferor Lender or the Purchasing
Lender, as agreed between them) of a registration and processing
fee of $3,500 for each Purchasing Lender listed in such
Commitment Transfer Supplement, and the Notes subject to such
Commitment Transfer Supplement, the Agent shall (i) accept such
Commitment Transfer Supplement, (ii) record the information
contained therein in the Register and (iii) give prompt notice of
such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such
Lender's possession concerning the Borrower and its Affiliates
which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Credit Agreement or which has been
delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower
and its Affiliates prior to becoming a party to this Credit
Agreement; in each case subject to subsection 11.14.
(g) At the time of each assignment pursuant to this subsection
11.6 to a Person which is not already a Lender hereunder and
which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for Federal income tax purposes,
the respective assignee Lender shall provide to the Borrower and
the Agent the appropriate Internal Revenue Service Forms (and, if
applicable, a U.S. Tax Compliance Certificate) described in
Section 3.9.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Credit Agreement
(including, without limitation, any right to payment of principal
and interest under any Note) to any Federal Reserve Bank in
accordance with applicable laws.
11.7 Adjustments; Set-off.
(a) Each Lender agrees that if any Lender (a "benefited
Lender") shall at any time receive any payment of all or part of
its Loans, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-
off, pursuant to events or proceedings of the nature referred to
in clause (e) of Section 9, or otherwise) in a greater proportion
than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or
interest thereon, such benefited Lender shall purchase for cash
from the other Lenders a participating interest in such portion
of each such other Lender's Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to
share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefited Lender, such purchase
shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of
another Lender's Loans may exercise all rights of payment
(including, without limitation, rights of set-off) with respect
to such portion as fully as if such Lender were the direct holder
of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of
set-off), each Lender shall have the right, without prior notice
to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon the
occurrence of any Event of Default, to setoff and appropriate and
apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower, or
any part thereof in such amounts as such Lender may elect,
against and on account of the obligations and liabilities of the
Borrower to such Lender hereunder and claims of every nature and
description of such Lender against the Borrower, in any currency,
whether arising hereunder, under the Notes or under any documents
contemplated by or referred to herein or therein, as such Lender
may elect, whether or not such Lender has made any demand for
payment and although such obligations, liabilities and claims may
be contingent or unmatured. The aforesaid right of set-off may
be exercised by such Lender against the Borrower or against any
trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or execution, judgment or
attachment creditor of the Borrower, or against anyone else
claiming through or against the Borrower or any such trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off
shall not have been exercised by such Lender prior to the
occurrence of any Event of Default. Each Lender agrees promptly
to notify the Borrower and the Agent after any such set-off and
application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such
set-off and application.
11.8 Table of Contents and Section Headings.
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing
this Credit Agreement.
11.9 Counterparts.
This Credit Agreement may be executed by one or more of the parties to
this Credit Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Credit Agreement
signed by all the parties shall be lodged with the Borrower and the
Agent.
11.10 Severability.
Any provision of this Credit Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
11.11 Integration.
This Credit Agreement, the Notes and the other Credit Documents
represent the agreement of the Borrower, the Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Agent, the Borrower
or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the Notes.
11.12 Governing Law.
This Credit Agreement and the Notes and the rights and obligations of
the parties under this Credit Agreement and the Notes shall be
governed by, and construed and interpreted in accordance with, the law
of the State of North Carolina.
11.13 Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the Borrower or any other
Credit Party with respect to this Credit Agreement, any Note or any of
the other Credit Documents may be brought in any state or federal
court of competent jurisdiction in the State of North Carolina, and,
by execution and delivery of this Credit Agreement, the Borrower and
each of the other Credit Parties accepts, for itself and in connection
with its properties, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this
Credit Agreement from which no appeal has been taken or is available.
The Borrower and each of the other Credit Parties irrevocably agrees
that all process in any such proceedings in any such court may be
effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to it at its
address set forth in subsection 11.2 or at such other address of which
the Agent shall have been notified pursuant thereto, such service
being hereby acknowledged by the Borrower and each of the other Credit
Parties to be effective and binding service in every respect. The
Borrower, each of the other Credit Parties, the Agent and the Lenders
irrevocably waive any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have to the bringing of any
such action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner permitted
by law or shall limit the right of any Lender to bring proceedings
against the Borrower and each of the other Credit Parties in the court
of any other jurisdiction.
11.14 Confidentiality.
The Agent and each of the Lenders agrees that it will use its best
efforts not to disclose without the prior consent of the Borrower
(other than to its employees, Subsidiaries, Affiliates, auditors or
counsel or to another Lender) any information with respect to the
Borrower and its Subsidiaries which is furnished pursuant to this
Credit Agreement, any other Credit Document or any documents
contemplated by or referred to herein or therein and which is
designated by the Borrower to the Lenders in writing as confidential
or as to which it is otherwise reasonably clear such information is
not public, except that any Lender may disclose any such information
(a) as has become generally available to the public other than by a
breach of this subsection 11.14, (b) as may be required or appropriate
in any report, statement or testimony submitted to any municipal,
state or federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the
Federal Deposit Insurance Corporation or the OCC or similar
organizations (whether in the United States or elsewhere) or their
successors or the National Association of Insurance Commissioners,(c)
as may be required or appropriate in response to any summons or
subpoena or any law, order, regulation or ruling applicable to such
Lender, (d) as may be necessary or appropriate in the exercise of the
Agent's and the Lender's rights under this Credit Agreement or the
other Credit Documents, or (E) to any prospective Participant or
assignee in connection with any contemplated transfer pursuant to
Section 11.6, provided that such prospective transferee shall have
been made aware of this Section 11.14 and shall have agreed to be
bound by its provisions as if it were a party to this Credit
Agreement.
11.15 Acknowledgments.
Each of the Credit Parties hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of each Credit Document;
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Credit Parties arising out of or
in connection with this Credit Agreement and the relationship
between Agent and Lenders, on one hand, and the Credit Parties,
on the other hand, in connection herewith is solely that of
debtor and creditor; and
(c) no joint venture exists among the Lenders or among the
Credit Parties and the Lenders.
11.16 Waivers of Jury Trial.
The Credit Parties, the Agent and the Lenders hereby irrevocably and
unconditionally waive, to the extent permitted by applicable law,
trial by jury in any legal action or proceeding relating to this
Credit Agreement or any other Credit Document and for any counterclaim
therein.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and delivered
as of the date first above written.
BORROWER:
THE MANITOWOC COMPANY, INC.,
a Wisconsin corporation
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title Treasurer
-------------------------
GUARANTORS:
MANITOWOC MEC, INC.,
a Nevada corporation
MANITEX, INC.,
a Texas corporation
FEMCO MACHINE COMPANY, INC.,
a Nevada corporation
WEST-MANITOWOC, INC.,
a Wisconsin corporation
NORTH CENTRAL CRANE & EXCAVATOR SALES
CORP.,
a Nevada corporation
MANITOWOC RE-MANUFACTURING, INC.,
a Wisconsin corporation
KOLPAK MANUFACTURING COMPANY,
a Tennessee corporation
MANITOWOC EQUIPMENT WORKS, INC.,
a Nevada corporation
MANITOWOC MARINE GROUP, INC.,
a Nevada corporation
MANITOWOC ICE, INC.,
a Wisconsin corporation
KMT REFRIGERATION, INC.,
a Wisconsin corporation
MANITOWOC CRANES, INC.,
a Wisconsin corporation
SI ACQUISITION, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Treasurer
for each of the foregoing
MANITOWOC CP, INC.,
a Nevada corporation
MANITOWOC CRANE GROUP, INC.,
a Nevada corporation
MANITOWOC FP, INC.,
a Nevada corporation
MANITOWOC-FOODSERVICE GROUP, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Authorized Representative
for each of the foregoing
LENDERS:
NATIONSBANK, N.A.,
in its capacity as Agent and as
a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Title Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
in its capacity as Documentation Agent and as
a Lender
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title Vice President
PNC BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title Vice President
THE BANK OF NOVA SCOTIA
By /s/ F. C. H. ▇▇▇▇▇
-------------------------
Title Senior Manager Loan Operations
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------
Title Senior Vice President
FLEET BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
Title Vice President
THE NORTHERN TRUST COMPANY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title Senior Vice President
THE BANK OF NEW YORK
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Title Assistant Vice President
ASSOCIATED BANK LAKESHORE
NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title Senior Vice President