EXHIBIT 4(a)(iv)
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CREDIT AGREEMENT
Dated as of
June 2, 2000
Among
ONEIDA LTD.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
BANC OF AMERICA SECURITIES, LLC,
as Syndication Agent,
FLEET NATIONAL BANK,
as Documentation Agent,
HSBC BANK, USA,
as Senior Managing Agent
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CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms......................................................... 1
SECTION 1.02. Classification of Loans and Borrowings................................ 11
SECTION 1.03. Terms Generally ...................................................... 12
SECTION 1.04. Accounting Terms; GAAP................................................ 12
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................................... 12
SECTION 2.02. Loans and Borrowings.................................................. 12
SECTION 2.03. Requests for Revolving Borrowings..................................... 13
SECTION 2.04. Swingline Loans....................................................... 13
SECTION 2.05. Funding of Borrowings................................................. 14
SECTION 2.06. Interest Elections.................................................... 14
SECTION 2.07. Termination and Reduction of Commitments.............................. 15
SECTION 2.08. Repayment of Loans; Evidence of Debt.................................. 16
SECTION 2.09. Prepayment of Loans................................................... 17
SECTION 2.10. Fees.................................................................. 17
SECTION 2.11. Interest.............................................................. 18
SECTION 2.12. Alternate Rate of Interest............................................ 18
SECTION 2.13. Increased Costs....................................................... 19
SECTION 2.14. Break Funding Payments................................................ 19
SECTION 2.15. Taxes................................................................. 20
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs........... 20
SECTION 2.17 Mitigation Obligations; Replacement of Lenders........................ 21
SECTION 2.18. Increase in Commitments............................................... 22
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.................................................. 23
SECTION 3.02. Authorization; Enforceability......................................... 23
SECTION 3.03. Governmental Approvals; No Conflicts.................................. 23
SECTION 3.04. Financial Condition; No Material Adverse Change....................... 23
SECTION 3.05. Properties............................................................ 24
SECTION 3.06. Litigation and Environmental Matters.................................. 24
SECTION 3.07. Compliance with Laws and Agreements................................... 24
SECTION 3.08. Investment and Holding Company Status................................. 24
SECTION 3.09. Taxes................................................................. 24
SECTION 3.10. ERISA................................................................. 25
SECTION 3.11. Disclosure............................................................ 25
SECTION 3.12. Liens................................................................. 25
SECTION 3.13. Subsidiaries.......................................................... 25
SECTION 3.14. No Default............................................................ 25
ARTICLE IV
Conditions
SECTION 4.01. Effective Date........................................................ 25
SECTION 4.02. Each Borrowing........................................................ 26
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information............................ 27
SECTION 5.02. Notices of Material Events............................................ 28
SECTION 5.03. Existence; Conduct of Business........................................ 28
SECTION 5.04 Payment of Obligations................................................ 28
SECTION 5.05. Maintenance of Properties; Insurance.................................. 28
SECTION 5.06. Books and Records; Inspection Rights.................................. 28
SECTION 5.07. Compliance with Laws.................................................. 28
SECTION 5.08. Use of Proceeds ...................................................... 29
SECTION 5.09 Subsidiary Guarantees................................................. 29
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.......................................................... 29
SECTION 6.02. Liens................................................................. 30
SECTION 6.03. Fundamental Changes................................................... 30
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions............. 31
SECTION 6.05. Hedging Agreements.................................................... 31
SECTION 6.06. Transactions with Affiliates.......................................... 31
SECTION 6.07. Restrictive Agreements ............................................... 31
SECTION 6.08. Fiscal Year and Accounting Policies................................... 32
SECTION 6.09. Subordinated Debt..................................................... 32
SECTION 6.10 Negative Pledges...................................................... 32
SECTION 6.11 Financial Covenants................................................... 32
SECTION 6.12 Letters of Credit..................................................... 32
ARTICLE VII
Events of Default
SECTION 7.01 Events of Default .................................................. 32
ARTICLE VIII
Administrative Agent
SECTION 8.01 The Administrative Agent.............................................. 34
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................................... 35
SECTION 9.02. Waivers; Amendments................................................... 36
SECTION 9.03. Expenses; Indemnity; Damage Waiver.................................... 37
SECTION 9.04. Successors and Assigns................................................ 37
SECTION 9.05. Survival.............................................................. 39
SECTION 9.06. Counterparts; Integration; Effectiveness............................. 39
SECTION 9.07. Severability.......................................................... 39
SECTION 9.08. Right of Setoff....................................................... 39
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process............................................... 40
SECTION 9.10. Waiver of Jury Trial.................................................. 40
SECTION 9.11. Headings.............................................................. 40
SECTION 9.12. Confidentiality....................................................... 40
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Opinion of Counsel for the Borrower
Exhibit C -- Form of Subsidiary Guarantee
Exhibit D -- Form of Subordination Agreement
Exhibit E -- Form of Sharing Agreement
SCHEDULES:
Schedule 2.01 -- Lenders' Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Existing Liens
Schedule 3.13 -- Subsidiaries
Schedule 4.01 -- Terminated Credit Facilities
Schedule 6.01 -- Existing Indebtedness
Schedule 6.07 -- Restrictive Agreements
CREDIT AGREEMENT dated as of June 2, 2000 among ONEIDA LTD.,
the LENDERS party hereto and THE CHASE MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement" means this Credit Agreement dated as of June 2,
2000 among Borrower, Administrative Agent and the Lenders.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the Prime Rate in effect on such day. Any change in the Alternate Base
Rate due to a change in the Prime Rate shall be effective from and including the
effective date of such change in the Prime Rate.
"Applicable Margin" means for any day, with respect to any
Loans, the Applicable Margin (expressed in terms of basis points (bps)) as
determined according to the applicable level ("Level") as indicated by the
following grid, with such Level to be determined on the basis of the
Consolidated Leverage Ratio of Borrower and its consolidated Subsidiaries as of
the last day of each Fiscal Quarter of the Borrower as reflected on the
financial statements for such Fiscal Quarter delivered by the Borrower pursuant
to Section 5.01(b):
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▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5 Level 6
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Consolidated Leverage <=2.0 <=2.25 <=2.5 <=2.75 <=3.00 >3.00
Ratio
--------------------------- ------------ ------------ ------------ ------------ ------------ -------------
Eurodollar Margin (bps) 100.0 125.0 150.0 175.0 200.0 250.0
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ABR Margin (bps) 0.0 0.0 25.0 50.0 75.0 125.0
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provided that (i) during the period from the Closing Date through and including
the date on which Borrower delivers the financial statements under Section
5.01(b) for the Fiscal Quarter ending July 29, 2000, the Applicable Margin shall
be based on ▇▇▇▇▇ ▇, and (ii) if the Borrower shall have failed to deliver the
financial statements required by Section 5.01(b) when due (without giving effect
to any grace period or notice requirement) or there shall have occurred an Event
of Default which has not been waived in the manner provided in Section 9.02
hereof, the Applicable Margin shall immediately be adjusted to Level 6 until
such time delivery of such financial statements shall have been made or the
Event of Default shall have been cured or waived, as the case may be. Each
change in the Applicable Margin shall be effective on the first Business Day
following delivery of the most recent financial statements pursuant to Section
5.01(b) subject to the proviso set forth in the preceding sentence.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Augmenting Lender" has the meaning set forth in Section 2.18
hereof.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Oneida Ltd., a New York corporation.
"Borrowing" means (a) Revolving Loan of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Business Combination" means a reorganization, merger,
consolidation or other transaction involving a combination of Borrower with
another Person accomplished in any manner.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means a change in control of the Borrower
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or
not the Borrower is then subject to such reporting requirement; provided
however, that, anything in this Agreement to the contrary notwithstanding, a
Change in Control shall be deemed to have occurred if:
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(a) any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity or
person, or any syndicate or group deemed to be a person under Section
14(d)(2) of the Exchange Act is or becomes the "beneficial owner" (as
defined in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act), directly or indirectly, of securities of the Borrower
representing 20% or more of the combined voting power of the Borrower's
then outstanding securities entitled to vote in the election of
directors of the Borrower'
(b) during any period of two consecutive years (not including
any period prior to the Effective Date), individuals who at the
beginning of such period constituted the Borrower's Board of Directors
and any new directors, whose election by the Board or nomination for
election by the Borrower's stockholders was approved by a vote of at
least three-fourths of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved cease for any reason
to constitute a majority thereof;
(c) there occurs a Business Combination with respect to which
the stockholders of the Borrower immediately prior to such transaction
do not immediately after such transaction, own directly or indirectly
more than 50% of the combined voting power of the Borrower or other
Person resulting from such Business Combination in substantially the
same proportions as their ownership, immediately prior to such Business
Combination, of the voting securities of the Borrower;
(d) all or substantially all of the assets of the Borrower are
sold, liquidated or distributed; or
(e) there occurs a transaction that constitutes a change in
the (i) ownership of the Borrower, (ii) effective Control of the
Borrower or (iii) effective ownership of a substantial portion of the
assets of the Borrower, as determined pursuant to Code Section 280G and
the regulations promulgated thereunder.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Swingline Loans.
"Closing Date" means June 2, 2000.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such
Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Lenders' Commitments is $275,000,000.
"Commitment Increase" has the meaning set forth in Section
2.18 hereof.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus, without duplication and to the extent reflected as
a charge in the statement of such Consolidated Net Income for such period, the
sum of (a) income tax expense, (b) interest expense, (c) depreciation and
amortization expense, and (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, all as determined on a
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consolidated basis; provided that (y) in determining Consolidated EBITDA of
Borrower and its consolidated Subsidiaries for any period that includes the
Fiscal Quarter ending October 30, 1999, there shall also be added to
Consolidated Net Income the sum of $8,500,000, representing pre-tax
extraordinary and non-recurring charges incurred in such quarter, and (z) for
purposes of calculating Consolidated EBITDA of the Borrower and its Subsidiaries
for any period, the Consolidated EBITDA of any Person acquired by the Borrower
or its Subsidiaries during such period shall be included on a pro forma basis
for such period (assuming the consummation of each such acquisition and the
incurrence or assumption of any Indebtedness in connection therewith occurred on
the first day of such period) if the consolidated balance sheet of such acquired
Person and its consolidated Subsidiaries as at the end of the period preceding
the acquisition of such Person and the related consolidated statements of income
and stockholders' equity and of cash flows for the period in respect of which
Consolidated EBITDA is to be calculated (i) have been previously provided to the
Administrative Agent and the Lenders and (ii) either (A) have been reported on
without a qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or (B) have been
found acceptable by the Administrative Agent.
"Consolidated Interest Coverage Ratio" means, as at the last
day of any period of four consecutive Fiscal Quarters, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated Interest Expense" means, for any period, total
interest expense (including that attributable to Capital Lease Obligations) of
the Borrower and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries, as determined in
accordance with GAAP.
"Consolidated Leverage Ratio" means, as at the last day of any
period of four consecutive Fiscal Quarters, the ratio of (a) Consolidated Total
Debt on such date to (b) Consolidated EBITDA for such period.
"Consolidated Net Income" means, for any period, the gross
revenues of the Borrower and its Subsidiaries for such period less all expenses
and other proper charges (including taxes on income), determined on a
consolidated basis in accordance with GAAP after eliminating earnings or losses
attributable to outstanding minority interests, but excluding in any event:
(a) (i) any gains or losses on the sale or other
disposition of investments and (ii) any gains or losses on the sale or
other disposition of plant, property and equipment which gains or
losses exceed, in the aggregate, $100,000 during any Fiscal Year and
any taxes on such excluded gains and any tax deductions or credits on
account of any such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Subsidiary accrued
prior to the date it became a Subsidiary, except to the extent
permitted to be included in Consolidated EBITDA pursuant to clause (z)
of the definition of Consolidated EBITDA set forth above;
(d) net earnings and losses of any Person (other than
a Subsidiary), substantially all the assets of which have been acquired
in any manner by the Borrower or any Subsidiary, realized by such
Person prior to the date of such acquisition, except to the extent
permitted to be included in Consolidated EBITDA pursuant to clause (z)
of the definition of Consolidated EBITDA set forth above;
(e) net earnings and losses of any Person (other than
a Subsidiary) with which the Borrower or a Subsidiary shall have
consolidated or which shall have merged into or with the Borrower or a
Subsidiary prior to the date of such consolidation or merger, except to
the extent permitted to be included in Consolidated EBITDA pursuant to
clause (z) of the definition of Consolidated EBITDA set forth above;
(f) net earnings of any Person (other than a
Subsidiary) in which the Borrower or any Subsidiary has an ownership
interest unless such net earnings shall have actually been received by
the Borrower or such Subsidiary in the form of cash distributions or
readily marketable securities;
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(g) any portion of the net earnings of any Subsidiary
which for any reason is unavailable for payment of dividends to the
Borrower or any other Subsidiary.
(h) earnings resulting from any reappraisal,
revaluation or write-up of assets;
(i) any deferred or other credit representing any
excess of the equity in any Subsidiary at the date of acquisition
thereof over the amount invested in such Subsidiary;
(j) any gain arising from the acquisition of any
securities of the Borrower or any Subsidiary;
(k) any reversal of any contingency reserve, except
to the extent that provision for such contingency reserve shall have
been made from income arising during such fiscal period or during the
period consisting of the four consecutive Fiscal Quarters immediately
following the end of such fiscal period; and
(l) any other extraordinary or non-recurring income
or gain.
"Consolidated Net Worth" means, at any date, all amounts which
would, in accordance with GAAP, be included on a consolidated balance sheet of
the Borrower and its Subsidiaries under stockholders' equity at such date.
"Consolidated Total Debt" means, at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such date, determined on a consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits, proceedings,
title defects and other matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
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"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Executive Officer" means the Chief Executive Officer, General
Counsel or any Financial Officer of Borrower.
"Excluded Taxes" means, with respect to the Administrative
Agent or any Lender, or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.17(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender pursuant to laws or regulations in effect at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.15(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, senior
vice president -- finance, principal accounting officer, treasurer or controller
of the Borrower.
"Fiscal Quarter" or "Fiscal Year" means the fiscal quarter or
fiscal year of Borrower.
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"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantor" means each Person executing and delivering a
Subsidiary Guarantee pursuant to this Agreement.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Increase Effective Date" has the meaning set forth in Section
2.18 hereof.
"Increasing Lender" has the meaning set forth in Section 2.18
hereof.
"Indebtedness" of any Person means, without duplication, (a)
all items of borrowed money (including, without limitation, Capital Lease
Obligations and the deferred purchase price of property or services other than
current accounts payable arising in the ordinary course of business), which in
accordance with GAAP would be included in determining total liabilities as shown
on the liability side of a balance sheet as of the date at which Indebtedness is
to be determined, (b) all Guarantees, letters of credit and endorsements (other
than of notes, bills and checks presented to banks for collection or deposit in
the ordinary course of business), in each case to support Indebtedness of other
Persons, and (c) all items of borrowed money secured by any mortgage, pledge or
Lien existing on property owned by such Person whether or not the borrowed money
secured thereby shall have been assumed by such Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information
Memorandum dated April 2000 relating to the Borrower and the Transactions and
delivered to the Lenders.
"Initial Loans" has the meaning set forth in Section 2.18
hereof.
7
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is two weeks or one,
two, three or six months thereafter, as the Borrower may elect.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform any of its obligations under this Agreement
or (c) the rights of or benefits available to the Lenders under this Agreement.
"Material Domestic Subsidiary" means any Subsidiary of the
Borrower which is incorporated in any state or other jurisdiction of the United
States of America and whose assets, as of the end of the most recent Fiscal
Quarter, account for 5% or more of the total assets of the Borrower and its
Subsidiaries, taken as a whole, determined in accordance with GAAP.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $5,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the
8
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Maturity Date" means May 31, 2003, unless extended in
accordance with Section 2.07(a).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Non-Increasing Lender" has the meaning set forth in Section
2.18 hereof.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Section 7.01; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Moody's;
9
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of not
less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in clause
(c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City, regardless of whether such rate
is the lowest rate actually charged by such Bank on commercial borrowings; each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"Sharing Agreement" means the Sharing Agreement among the
Administrative Agent, the Lenders and the holders of certain other indebtedness
of Borrower and its Subsidiaries substantially in the form of Exhibit E, as the
same may be amended, supplemented, or otherwise modified from time to time.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject, with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsequent Borrowings" has the meaning set forth in Section
2.18 hereof.
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"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guarantee" means the Subsidiary Guarantee
Agreement executed and delivered by each Material Domestic Subsidiary
substantially in the form of Exhibit C, as the same may be amended,
supplemented, restricted or otherwise modified from time to time.
"Subordination Agreement" means the Subsidiary Subordination
Agreement executed and delivered by each Material Domestic Subsidiary
substantially in the form of Exhibit D, as the same may be amended,
supplemented, or otherwise modified from time to time.
"Subordinated Debt" means all Indebtedness of Borrower or its
Subsidiaries subordinated in right of payment to Indebtedness arising under this
Agreement by written terms or agreement in form and substance satisfactory to
the Lenders.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Tableware Business" means the business of (a) designing,
manufacturing, licensing, importing, selling, marketing, distributing or
otherwise dealing in tableware, kitchenware, and giftware, including but not
limited to, dinnerware, flatware, hollowware, giftware, glassware, crystal,
stemware, cutlery, cookware, table linens, kitchen, table or bar utensils and
gadgets, and minor kitchen appliances and equipment, and (b) licensing
Borrower's name for use on toys.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means (a) the execution, delivery and
performance by the Borrower of this Agreement, the borrowing of Loans and the
use of the proceeds thereof, and (b) the execution, delivery and performance by
each Guarantor of a Subsidiary Guarantee.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by
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Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrower
from time to time during the Availability Period in an aggregate principal
amount that will not result in such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder.
(b) Each Revolving Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $5,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $100,000 and not less than
$1,000,000. Each Swingline Loan shall be in an amount that is an integral
multiple of $1,000 and not less than $250,000. Borrowings of more than one Type
and Class may be
12
outstanding at the same time; provided that there shall not at any time be more
than a total of ten Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the total Revolving Credit Exposures exceeding the total
Commitments; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent
13
will give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.09 with respect to Loans made by such Lender (and Section
2.09 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand (without duplication) such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower (absent payment of interest by such Lender), the
interest rate applicable to ABR Loans, provided that Borrower receives notice of
the Lender's failure to make its share of the applicable Borrowing within three
Business Days thereafter. If such Lender ultimately pays its share of the
applicable Borrowing to the Administrative Agent, then the amount paid shall
constitute such Lender's Loan included in such Borrowing, and Borrower shall pay
interest thereon at the rate determined in accordance with Section 2.06.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings which may not be converted or continued.
14
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date; provided, however, that the Borrower may, by written request to the
Administrative Agent not less than 45 days prior to the Maturity Date then in
effect (such Maturity Date hereinafter referred to as the "extension date"),
request that such Maturity Date be extended for no more than two successive
one-year periods. Within 45 days following receipt of such request, the
Administrative Agent will advise the Borrower in writing whether the Required
Lenders agree to or deny such extension, provided that if the Administrative
Agent shall fail to so advise the Borrower, the Required Lenders will be deemed
to have denied such request. If the Required Lenders shall agree thereto, such
extension shall become effective as of such extension date only as to those
Lenders who have agreed to the extension request. The extension shall not apply
to any Lender who has denied the extension request and the Commitment of any
such Lender shall terminate (and all Loans and other amounts owed such Lender
shall be paid) on the Maturity Date without giving effect to the extension
request. Each extension approved by the Required Lenders will become effective
only upon satisfaction of the following conditions as of such date, in form and
substance satisfactory to the Administrative Agent, unless expressly waived by
the Administrative Agent: (a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by the Borrower in Article III
hereof shall be true on and as of such date with the same force and effect as if
15
made on and as of such date; and (c) the Borrower shall have furnished to the
Administrative Agent such corporate documents and/or opinions of counsel with
respect to such extension, as the Administrative Agent may reasonably request.
Each extension request by the Borrower under this Section 2.07(a) shall
constitute a certification by the Borrower to the effect set forth in clauses
(a) and (b) of the preceding sentence (both as of the date of such notice and,
unless the Borrower otherwise notifies the Administrative Agent prior to the
relevant extension date, as of such date).
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $5,000,000 and
not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.09, the Revolving Credit Exposures would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date, and (ii) the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of the Maturity
Date and the first date after such Swingline Loan is made that is the 15th day
of a calendar month and is at least two Business Days after such Swingline Loan
is made; provided that on each date that a Revolving Borrowing is made, the
Borrower shall repay all Swingline Loans then outstanding, except for amounts
which do not satisfy the minimum borrowing amounts for Revolving Borrowings set
forth in Section 2.02.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
16
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (b) of this
Section.
(b) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.07, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.07. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.11.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, on the
daily average unused amount of the Commitment of such Lender during the period
from and including the date hereof to but excluding the date on which such
Commitment terminates, provided that for purposes of calculating commitment fees
the unused amount of a Commitment shall be determined without regard to the
principal amount of any outstanding Swingline Loans. The rate at which
commitment fees shall accrue are to be determined according to the applicable
level ("Level") as indicated in the following grid, with such Level to be
determined on the basis of the Consolidated Leverage Ratio of Borrower and its
consolidated Subsidiaries as of the last day of each Fiscal Quarter of the
Borrower as reflected on the financial statements for such Fiscal Quarter
delivered by the Borrower pursuant to Sections 5.01(b):
---------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5 Level 6
---------------------------------------------------------------------------------------------------------------
Consolidated Leverage <=2.0 <=2.25 <=2.5 <=2.75 <=3.0 >3.0
Ratio
---------------------------------------------------------------------------------------------------------------
Commitment Fee (bps) 35.0 37.5 40.0 45.0 50.0 50.0
---------------------------------------------------------------------------------------------------------------
provided that (i) during the period from the Closing Date through and including
the date on which Borrower delivers the financial statements under Section
5.01(b) for the Fiscal Quarter ending July 29, 2000, commitment fees shall
accrue at the rate set forth in ▇▇▇▇▇ ▇, and (ii) if the Borrower shall have
failed to deliver the financial statements required by Section 5.01(b) when due
(without giving effect to any grace period or notice requirement) or there shall
have occurred an Event of Default which has not been waived in the manner
provided in Section 9.02 hereof, the rate at which commitment fees shall accrue
shall immediately be adjusted to the rate set forth in Level 6 until such time
delivery of such financial statements shall have been made or the Event of
Default shall have been cured or waived, as the case may be. Each change in
commitment fees shall be effective on the first Business Day following delivery
of the most recent financial statements pursuant to Section 5.01(b) subject to
the proviso set forth in the preceding sentence.
(b) Accrued commitment fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur
after the date hereof. All commitment fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
17
(c) The Borrower agrees to pay to the Administrative Agent
additional fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees and upfront fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) Swingline Loans shall bear interest at the Alternate Base
Rate plus the Applicable Margin or at such other rate as may be offered, if any,
by the Swingline Lender in response to a Borrowing Request for a Swingline Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans
(or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
18
ineffective and shall be deemed to request conversion to an ABR Borrowing, and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by
such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender of
participating in, or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.09(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate (in the case of a
Eurodollar Loan) that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A
19
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) The Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Payment may be made (without limitation) by wire transfer or by
written authorization by Borrower to the Administrative Agent to deduct the
payment from a deposit account maintained by Borrower with the Administrative
Agent containing immediately available funds equal to or in excess of the amount
to be paid. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in U.S. dollars.
20
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(c), 2.05(b) or 2.16(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.13, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment, provided that Borrower has
been apprised of such costs and expenses prior to such designation or assignment
by the Lender.
(b) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its
21
interests, rights and obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.13 or payments required to be made pursuant to Section 2.15, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
SECTION 2.18. Increase in Commitments. (a) The Borrower may,
by written notice to the Administrative Agent (which shall promptly deliver a
copy to each of the Lenders), request that the total Commitments be increased by
an amount not less than $5,000,000 for any such increase; provided that after
giving effect to any such increase the sum of the total Commitments shall not
exceed $285,000,000 minus any amount by which the Commitments shall have been
reduced pursuant to Section 2.07. Such notice shall set forth the amount of the
requested increase in the total Commitments and the date on which such increase
is requested to become effective (which shall be not less than 10 Business Days
or more than 60 days after the date of such notice), and shall offer each Lender
the opportunity to increase its Commitment by its Applicable Percentage of the
proposed increased amount. Each Lender shall, by notice to the Borrower and the
Administrative Agent given not more than 10 days after the date of the
Borrower's notice, either agree to increase its Commitment by all or a portion
of the offered amount (each Lender so agreeing being an "Increasing Lender") or
decline to increase its Commitment (and any Lender that does not deliver such a
notice within such period of 10 days shall be deemed to have declined to
increase its Commitment) (each Lender so declining or deemed to have declined
being a "Non-Increasing Lender"). In the event that, on the 10th day after the
Borrower shall have delivered a notice pursuant to the first sentence of this
paragraph, the Lenders shall have agreed pursuant to the preceding sentence to
increase their Commitments by an aggregate amount less than the increase in the
total Commitments requested by the Borrower, the Borrower may, by written notice
to the Administrative Agent, request the Administrative Agent to arrange for one
or more banks or other financial institutions (any such bank or other financial
institution referred to in this clause being called an "Augmenting Lender"),
which may include any Lender, to extend Commitments or increase their existing
Commitments in an aggregate amount equal to the unsubscribed amount; provided
that each Augmenting Lender, if not already a Lender hereunder, shall be subject
to the approval of the Administrative Agent (which approval shall not be
unreasonably withheld) and the Borrower, and each Augmenting Lender shall
execute all such documentation as the Administrative Agent shall reasonably
specify to evidence its Commitment and/or its status as a Lender hereunder. Any
increase in the total Commitments may be made in an amount which is less than
the increase requested by the Borrower if the Borrower is unable to arrange for,
or chooses not to arrange for, Augmenting Lenders.
(b) On the effective date (the "Increase Effective Date") of
any increase in the total Commitments pursuant to this Section 2.18 (the
"Commitment Increase"), (i) the aggregate principal amount of the loans
outstanding (the "Initial Loans") immediately prior to giving effect to the
Commitment Increase on the Increase Effective Date shall be deemed to be paid,
(ii) each Increasing Lender and each Augmenting Lender that shall have been a
Lender prior to the Commitment Increase shall pay to the Administrative Agent in
same day funds an amount equal to the difference between (A) the product of (1)
such Lender's Applicable Percentage (calculated after giving effect to the
Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings
(as hereinafter defined) and (B) the product of (1) such Lender's Applicable
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender
that shall not have been a Lender prior to the Commitment Increase shall pay to
the Administrative Agent in same day funds an amount equal to the product of (1)
such Augmenting Lender's Applicable Percentage (calculated after giving effect
to the Commitment Increase) multiplied by (2) the amount of the Subsequent
Borrowings, and (iv) after the Administrative Agent receives the funds specified
in clauses (ii) and (iii) above, the Administrative Agent shall pay to each
Non-Increasing Lender the portion of such funds that is equal to the difference
between (A) the product of (1) such Non-Increasing Lender's Applicable
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, and (B) the product of (1)
such Non-Increasing Lender's
22
Applicable Percentage (calculated after giving effect to the Commitment
Increase) multiplied by (2) the amount of the Subsequent Borrowings, (v) after
the effectiveness of the Commitment Increase, the Borrower shall be deemed to
have made new Borrowings (the "Subsequent Borrowings") in an aggregate principal
amount equal to the aggregate principal amount of the Initial Loans and of the
types and for the Interest Periods specified in a Borrowing Request delivered to
the Administrative Agent in accordance with Section 2.03, (vi) each
Non-Increasing Lender, each Increasing Lender and each Augmenting Lender shall
be deemed to hold its Applicable Percentage of each Subsequent Borrowing (each
calculated after giving effect to the Commitment Increase) and (vii) the
Borrower shall pay each Increasing Lender and each Non-Increasing Lender any and
all accrued but unpaid interest on the Initial Loans. The deemed payments made
pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject
to indemnification by the Borrower pursuant to the provisions of Section 2.14 if
the Increase Effective Date occurs other than on the last day of the Interest
Period relating thereto and breakage costs result.
(c) Increases and new Commitments created pursuant to this
Section 2.18 shall become effective on the date specified in the notice
delivered by the Borrower pursuant to the first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the total
Commitments (or in the Commitment of any Lender) or addition of a New Lender
shall become effective under this Section unless, (i) on the date of such
increase, the conditions set forth in paragraphs (a) and (b) of Section 4.02
shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Borrower, and (ii) the Administrative Agent shall have received (with
sufficient copies for each of the Lenders) documents consistent with those
delivered on the Effective Date under clauses (b) and (c) of Section 4.01 as to
the corporate power and authority of the Borrower to borrow hereunder after
giving effect to such increase.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to own or lease its assets and carry on its business as now conducted
and, except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within the Borrower's and each Guarantor's corporate powers and have been
duly authorized by all necessary corporate and, if required, stockholder action.
Each of this Agreement and each Subsidiary Guarantee has been duly executed and
delivered by the Borrower and each Guarantor (as the case may be), and
constitutes a legal, valid and binding obligation of the Borrower and each
Guarantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows as of
and for the Fiscal Year ended January 29, 2000, reported on by
PriceWaterhouseCoopers LLP,
23
independent public accountants. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP.
(b) Since January 29, 2000, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole, and no sale,
transfer or other disposition of a material part of the assets or business of
Borrower or any Subsidiary.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for Disclosed Matters and
minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended
purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability, (iv) knows of any basis for any Environmental
Liability, or (v) is subject to any decree, consent order or other
administrative order arising under any Environmental Law. Except for the
Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, no real estate currently or formerly owned or leased
by the Borrower or any of its Subsidiaries contains, is subject to, affected by,
or contaminated with, Hazardous Materials, except Hazardous Materials used,
stored and transported in accordance with Environmental Laws.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Borrower nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to
24
have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its Subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. To the actual knowledge of the Executive Officers
of the Borrower, neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Liens. None of the assets or properties of the
Borrower or any of its Subsidiaries is subject to any Lien other than Permitted
Encumbrances, and Liens existing as the date hereof and disclosed on Schedule
3.12.
SECTION 3.13. Subsidiaries. The Persons listed on Schedule
3.13 constitute all the Subsidiaries of the Borrower. Such Schedule identifies
the state or country of organization of each such Subsidiary and the percentage
ownership of such Subsidiary directly or indirectly owned by the Borrower, the
number of authorized and outstanding shares of capital stock, and whether such
Subsidiary constitutes a Material Domestic Subsidiary. Except as set forth on
Schedule 3.13, there are no pre-emptive rights with respect to the capital stock
of such Subsidiaries and no options, warrants or other rights to acquire the
capital stock of any such Subsidiary, and no securities convertible into such
capital stock.
SECTION 3.14. No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any Indebtedness or
indenture, agreement or other instrument to which such Person is a party or by
which it or any of its property is bound in any respect which could reasonably
be expected to have a Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of ▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special counsel
for the Borrower and Guarantors, substantially in the form of Exhibit
B, and covering such other matters relating to the Borrower, the
Guarantors, this Agreement, the Subsidiary Guarantees or the
Transactions as the Required Lenders may reasonably request.
25
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrower and each Guarantor, the authorization of the
Transactions, the incumbency of the officers executing any documents on
behalf of Borrower or any Guarantor, and any other legal matters
relating to the Borrower and each Guarantor, this Agreement or the
Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
(f) The Administrative Agent shall have received a Subsidiary
Guarantee and a Subordination Agreement executed by each Material
Domestic Subsidiary.
(g) The Administrative Agent shall have received from the
Borrower and each Guarantor evidence that there has been no material
adverse change, or any development involving a perspective material
adverse change, in the business, operations, properties, assets,
liabilities, performance or condition (financial or otherwise) or
prospects of the Borrower and each Guarantor.
(h) The Administrative Agent shall have received evidence
satisfactory to it that the credit facilities described on Schedule
4.01 have been irrevocably canceled and all principal, interest,
premiums, fees and other amounts payable in respect thereof have been
paid in full (which payment may occur as a result of a Borrowing under
this Agreement).
(i) The Administrative Agent shall have received a counterpart
of the Sharing Agreement duly executed by each of the parties thereto.
The Administrative Agent shall notify the Borrower and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New
York City time, on June 9, 2000 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Borrowing. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date
of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
(c) The timely receipt of a Borrowing Request as required
under this Agreement.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
26
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements; Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each Fiscal Year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all reported on by
PriceWaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each Fiscal Quarter of the
Borrower (including the fourth Fiscal Quarter), its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such Fiscal Quarter and
the then elapsed portion of the Fiscal Year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous Fiscal Year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) on or before the commencement of each Fiscal Year of the
Borrower, a copy of the budget of the Borrower and its Subsidiaries for
such Fiscal Year;
(d) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Section 6.11 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(e) concurrently with any deliver of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
(i) filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange as the case may be, or (ii) delivered by the
Borrower to its stockholders or to holders of its Indebtedness (or any
trustee, agent, or other representative therefor);
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
27
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following promptly after the same becomes known to an Executive Officer:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
(d) receipt of any claim made by a Person, including any
Governmental Authority, asserting that the Borrower or any Subsidiary
is in violation of any Environmental Law, or the occurrence of any
event which could give rise to an Environmental Liability, in each case
if the effect thereof could reasonably be expected to result in a
Material Adverse Effect; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice and during normal business hours, to visit and inspect
its properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested,
subject to the provisions of Section 9.12 hereof.
SECTION 5.07. Compliance with Laws. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or
28
its property (including, without limitation, all Environmental Laws) except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will
be used only for general corporate purposes of the Borrower and its subsidiaries
in the ordinary course of business, including refinancing of existing debt and
permitted acquisitions. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations T, U and X.
SECTION 5.09. Subsidiary Guarantees. The Borrower shall cause
each Subsidiary which becomes a Material Domestic Subsidiary after the Closing
Date (whether by creation, acquisition, expansion or otherwise) to promptly
execute and deliver to the Administrative Agent a Subsidiary Guarantee and such
other documents and certificates as may be reasonably requested by the
Administrative Agent to establish the organization and good standing of such
Material Domestic Subsidiary and the due authorization and execution of the
Subsidiary Guarantee.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, and will
not permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except Indebtedness of the following nature which is otherwise
permitted under Section 6.11 hereof:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 (which Schedule shall not include any of the Indebtedness
reflected on Schedule 4.01), and extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding principal
amount thereof;
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness permitted under
this Agreement of any Subsidiary and by any Subsidiary of Indebtedness
permitted under this Agreement of the Borrower or any other Subsidiary;
(e) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or
within 180 days after such acquisition or the completion of such
construction or improvement, (ii) the amount of such Indebtedness does
not exceed the cost of such acquisition, construction or improvement,
and (iii) the aggregate principal amount of Indebtedness permitted by
this clause (e) shall not exceed $25,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; provided that (i) such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of
or in connection with such Person becoming a Subsidiary and (ii) the
principal amount of such Indebtedness, when added to other Indebtedness
of Borrower and its Subsidiaries, does not violate subparagraphs (e) or
(i) of this Section;
29
(g) unsecured Indebtedness of the Borrower; and
(h) unsecured Indebtedness of the Borrower's Subsidiaries
which does not exceed, in the aggregate, $25,000,000 outstanding at any
time, exclusive of unsecured Indebtedness of Subsidiaries listed on
Schedule 6.01.
SECTION 6.02. Liens. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 3.12;
provided that (i) such Lien shall not apply to any other property or
asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary ,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such
security interests secure Indebtedness permitted by clause (e) of
Section 6.01, (ii) such security interests and the Indebtedness secured
thereby are incurred prior to or within 180 days after such acquisition
or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary; and
SECTION 6.03. Fundamental Changes. (a) The Borrower will not,
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions), or engage in a sale/leaseback transaction with respect to, any
substantial part of its assets, any trade receivables (other than an assignment
in connection with the collection thereof in the ordinary course of business),
or all or substantially all of the stock of any of its Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing (i) any Subsidiary/Person may
merge into the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Subsidiary/Person may merge into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary
may sell, transfer, lease or otherwise dispose of its assets to the Borrower or
to another Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and the assets of such Subsidiary are distributed
to Borrower in liquidation or dissolution, provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 6.04, and
(v) Borrower and its Subsidiaries may sell, transfer, or otherwise dispose of
(in one transaction or a series of transactions), or engage in a sale/leaseback
transaction with respect to, assets if the consideration received is in cash or
cash equivalents at least equal to the fair market value of such assets and the
aggregate consideration received does not exceed $15,000,000 for all such sales,
transfers, or dispositions.
30
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than the
Tableware Business.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except Borrower and its
Subsidiaries may engage in transactions of the following nature so long as no
Default or Event of Default exists or would be created as a result thereof:
(a) Permitted Investments;
(b) investments by the Borrower existing on the date hereof in
the capital stock of its Subsidiaries and in ▇▇▇▇▇▇ Zwiesel Glaswerke, AG;
(c) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section
6.01;
(e) repurchases or redemptions of the capital stock of
Borrower permitted by applicable law;
(f) purchases or acquisitions of (whether by merger,
consolidation, purchase, share exchange or otherwise), or investments in, the
assets or capital stock of another Person, provided that (i) prior to any such
purchase, acquisition or investment, the Administrative Agent shall have
received a certificate from a Financial Officer of Borrower setting forth
calculations which demonstrate that, on a pro forma basis, after giving effect
to the proposed purchase, acquisition or investment, the Borrower is in
compliance with Section 6.11 hereof as of the end of the most recent Fiscal
Quarter, and certifying that no other Default or Event of Default exists or
would be created as a result thereof, (ii) the Person purchased or acquired or
in which an investment is made is engaged solely in the Tableware Business, and
(iii) if, after giving effect to the proposed purchase, acquisition or
investment on a pro forma basis, the Consolidated Leverage Ratio of Borrower and
its Subsidiaries equals or exceeds 2.5 to 1.0, the aggregate consideration paid
by Borrower or any Subsidiary in connection with the purchase of assets from,
acquisitions of the capital stock of, or investment in, any single Person
(whether in a single transaction or in a series of transactions) shall not
exceed $85,000,000.
SECTION 6.05. Hedging Agreements. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities; provided that
the maximum aggregate amount (after giving effect to any netting agreements)
that the Borrower and its Subsidiaries would be required to pay under all such
Hedging Agreements if such Hedging Agreements were terminated at any time shall
not exceed $5,000,000.
SECTION 6.06. Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties, or
(b) transactions between or among the Borrower and its wholly owned Subsidiaries
not involving any other Affiliate.
SECTION 6.07. Restrictive Agreements. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Subsidiary
to pay dividends or other distributions
31
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Agreement, (ii)
the foregoing shall not apply to restrictions and conditions existing on the
date hereof identified on Schedule 6.07 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), and (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder.
SECTION 6.08. Fiscal Year and Accounting Policies. The
Borrower shall not make any change in its Fiscal Year or change its accounting
policies or practices from those in effect on the Closing Date, except to the
extent such change is required by GAAP.
SECTION 6.09. Subordinated Debt. The Borrower shall not, and
will not permit any of its Subsidiaries to, modify the terms of any Subordinated
Debt or to pay any principal of, interest on, or other amount in respect of,
Subordinated Debt other than scheduled payments of principal and interest on
Subordinated Debt if and to the extent permitted under the terms of a written
subordination agreement executed and delivered by the subordinated creditor
containing terms acceptable to the Administrative Agent.
SECTION 6.10. Negative Pledges. The Borrower shall not, and
shall not permit any of its Subsidiaries to, enter into any agreement which
prohibits or limits the ability of Borrower or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, except operating
leases, purchase money Liens or Capital Lease Obligations permitted by this
Agreement containing such a prohibition or limitation solely as to the assets
financed thereby.
SECTION 6.11. Financial Covenants. The Borrower shall not:
(a) for a period of four consecutive Fiscal Quarters ending
with its most recent Fiscal Quarter, permit the Consolidated Interest Coverage
Ratio of the Borrower and its Subsidiaries to be less than 3.0 to 1.0;
(b) permit the Consolidated Leverage Ratio of the Borrower and
its Subsidiaries to be greater than (i) 3.0 to 1.0 as of the last day of the
Fiscal Quarter ending April 29, 2000 (provided that solely for the purpose of
determining compliance herewith on a pro forma basis under Section 6.04(f), the
Consolidated Leverage Ratio for the Fiscal Quarter ending April 29, 2000 shall
not exceed 3.25 to 1.0), (ii) 3.25 to 1.0 as of the last day of the Fiscal
Quarters ending July 29, 2000 and October 28, 2000, and (iii) 3.0 to 1.0 as of
the last day of each succeeding Fiscal Quarter; and
(c) as of the last day of any Fiscal Quarter, permit
Consolidated Net Worth of the Borrower and its consolidated Subsidiaries to be
less than the sum of (i) $125,000,000, plus (ii) 50% of the Consolidated Net
Income of Borrower and its Consolidated Subsidiaries (which for the purposes of
this covenant shall not be reduced by losses) for the Fiscal Year ending January
27, 2001 and for each Fiscal Year thereafter.
SECTION 6.12. Letters of Credit. The Borrower will not, and
will not permit any Subsidiary to, become an account party in respect of, or
otherwise incur obligations under, any letters of credit except obligations in
respect of (i) trade letters of credit in an amount not to exceed $20,000,000 in
the aggregate and (ii) standby letters of credit in an amount not to exceed
$20,000,000 in the aggregate.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following
events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
32
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Section) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any amendment or modification hereof or waiver
hereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or
any amendment or modification hereof or waiver hereunder, shall prove
to have been incorrect in any material respect when made or deemed
made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Section), and
such failure shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, within three Business Days of the
date the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $1,500,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be
33
effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) any Subsidiary Guarantee shall cease, for any reason
(except as expressly provided in such Guarantee), to be in full force
and effect or any Guarantor shall so assert;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Section), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Section, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
Administrative Agent
SECTION 8.01. The Administrative Agent. (a) Each of the
Lenders hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof, together with such actions and powers as are reasonably incidental
thereto.
(b) The bank serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative Agent,
and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement,
34
warranty or representation made in or in connection with this Agreement, (ii)
the contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
(g) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
35
(a) if to the Borrower, to it at Oneida Ltd., ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior
Vice President - Finance (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
Oneida Ltd., Legal Department, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of May ▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank, Bridgewater
Place, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention of ▇▇▇▇▇▇
▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Swingline Lender, to The Chase Manhattan Bank,
Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of May ▇▇▇▇ (Telecopy No. (212)
552-5650), with a copy to The Chase Manhattan Bank, Bridgewater Place,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention of ▇▇▇▇▇▇ ▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.16(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
release any Guarantor from its obligations under a Subsidiary Guarantee without
the written consent of each Lender, or (vi) change any of the provisions of this
Section or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent or the Swingline Lender hereunder without the prior
written consent of the Administrative Agent or the Swingline Lender, as the case
may be. Notwithstanding the foregoing, the consent of the Required Lenders shall
not be required in connection with any amendment the sole effect of which is to
increase the aggregate Commitments in accordance with Section 2.18, provided
that any such amendment shall be approved as provided in Section 2.18.
36
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds therefrom (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent or the Swingline Lender, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not
later than five days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to an Affiliate of a Lender which does
not subject Borrower to a claim by
37
the Affiliate for compensation under Section 2.13 or Section 2.15 hereof, the
Borrower must give its prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an assignment to
a Lender or an Affiliate of a Lender, the Administrative Agent (and, in the case
of an assignment of all or a portion of a Commitment or any Lender's obligations
in respect of its Swingline Exposure, the Swingline Lender) must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld), (iii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iv) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, (v) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500 to be paid by the assignor or assignee, and (vi) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Any consent of the Borrower otherwise required
under this paragraph (A) shall not be required if an Event of Default has
occurred and is continuing and (B) shall not be deemed to be unreasonably
withheld if Borrower has determined in its reasonable discretion that the
proposed assignment would result in one Lender having an unreasonably high
percentage of the total Commitments or would leave the assigning Lender with an
unreasonably small percentage of the total Commitments. Subject to acceptance
and recording thereof pursuant to paragraph (d) of this Section, from and after
the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a 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 pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent, and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, or the Swingline Lender, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent
38
of the Participant, agree to any amendment, modification or waiver described in
the first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.16(c) as
though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans
and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this
39
Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. Each Lender shall give Borrower notice of the amount of any set-off
under this Section within a reasonable period of time after the exercise
thereof. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each party hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the State and
Federal courts located in the State of New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right that
the Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
any jurisdiction in which it may lawfully do so, provided that no such action or
proceeding may be commenced in a court located outside the United States except
an action or proceeding to enforce a judgment rendered by a court in the United
States in the courts of another jurisdiction.
(c) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors who need to know such Information (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
40
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the prior written consent of the Borrower or (h)
to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source not
known by the Administrative Agent or Lender to be under an obligation of
confidentiality with respect thereto. For the purposes of this Section,
"Information" means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
[Remainder of page intentionally left blank]
41
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ONEIDA LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Senior Vice President, Finance
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Vice President
BANK OF AMERICA, N.A., individually as Syndicated
Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK, individually and as
Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
HSBC BANK, USA, individually and as Senior Managing
Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Banking Officer
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Managing Director
EUROPEAN AMERICAN BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANCA NAZIONALE DEL LAVORO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
43
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of June 2,
2000 (as amended and in effect on the date hereof, the "Credit Agreement"),
among Oneida Ltd., the Lenders named therein and The Chase Manhattan Bank, as
Administrative Agent for the Lenders. Terms defined in the Credit Agreement are
used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date set forth on the reverse hereof, the
interests set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth on the reverse hereof in the Commitment of
the Assignor on the Assignment Date and Revolving Loans owing to the Assignor
which are outstanding on the Assignment Date, together with the participations
in Swingline Loans held by the Assignor on the Assignment Date, but excluding
accrued interest and fees to and excluding the Assignment Date. The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement. From and after
the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.15(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
44
===========================================================================================================
Percentage Assigned of
Facility/Commitment (set forth,
to at least 8 decimals, as a
Principal Amount Assigned percentage of the Facility and
the aggregate Commitments of all
Lenders thereunder)
Facility
-----------------------------------------------------------------------------------------------------------
Commitment Assigned: $ %
-----------------------------------------------------------------------------------------------------------
Revolving Loans:
-----------------------------------------------------------------------------------------------------------
===========================================================================================================
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor], as Assignor
By:_______________________________________
Name:
Title:
[Name of Assignee], as Assignee
By: _______________________________________
Name:
Title:
The undersigned hereby consent to the within assignment:
Oneida Ltd. The Chase Manhattan Bank,
as Administrative Agent,
By: ______________________________ By: ________________________________
Name: Name:
Title: Title:
The Chase Manhattan Bank, as
as Swingline Lender,
By: ______________________________
Name:
Title:
45
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE BORROWER
June ___, 2000
To the Lenders and the Administrative
Agent Referred to Below
c/o The Chase Manhattan Bank, as
Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have acted as special counsel for Oneida Ltd., a New York
corporation ("Borrower"), in connection with the Credit Agreement dated as of
June ____, 2000 (the "Credit Agreement"), among Borrower, the banks and other
financial institutions identified therein as Lenders, and The Chase Manhattan
Bank, as Administrative Agent ("Administrative Agent"). Terms defined in the
Credit Agreement are used herein with the same meanings.
We also have acted as special counsel to Buffalo China, Inc.,
Encore Promotions, Inc. and THC Systems Inc. (individually, "Guarantor," and
collectively, "Guarantors") in connection with the negotiation, execution and
delivery of a Subsidiary Guarantee granted by each Guarantor and a Subordination
Agreement entered into by Guarantors and Borrower with the Administrative Agent
(the Credit Agreement, the Subsidiary Guarantees and the Subordination Agreement
being hereinafter collectively referred to as the "Financing Documents").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Borrower and each Guarantor (a) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, and (b) has all requisite power and authority to carry on its
business as now conducted, to own or lease its assets, and to make, deliver and
perform its obligations under the Financing Documents to which it is a party.
2. The Transactions are within the corporate powers of Borrower
and each Guarantor and have been duly authorized by all necessary corporate and,
if required, stockholder action. Each of the Financing Documents has been duly
executed and delivered by Borrower and each Guarantor (as the case may be) and
constitutes a legal, valid and binding obligation of Borrower and each
Guarantor.
3. The Transactions (a) do not require any consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of Borrower or any of its Subsidiaries
or any order of any Governmental Authority, (c) to our knowledge, will not
violate or result in a default under any indenture, agreement or other
instrument binding upon Borrower or any of its Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by Borrower or
any of its Subsidiaries, and (d) will not result in the creation or imposition
of any Lien on any asset of Borrower or any of its Subsidiaries.
4. To our knowledge, there are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority pending against or
threatened against or affecting Borrower or any of its Subsidiaries (a) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could
46
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect (other than the Disclosed Matters) or (b) that involve any of the
Financing Documents or the Transactions.
5. Neither Borrower nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
The foregoing legal opinions are subject to the following
qualifications and are based on the following further assumptions:
(a) The enforceability of any rights and remedies provided in any
Financing Document against Borrower or any Guarantor is subject to (i) any
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting generally the enforcement of creditors' rights; (ii) equitable
limitations (regardless of whether considered in a proceeding in equity or at
law); and (iii) public policy limitations relating to principles of good faith
and fair dealing.
(b) We express no opinion with respect to (i) the enforceability
of any provisions in the Financing Documents relating to delay or omission of
enforcement of rights or remedies, or waivers of defenses, or waivers of
benefits of appraisement, valuation, stay, extension, moratorium, redemption,
statutes of limitation, or other nonwaivable benefits bestowed by operation of
law, (ii) the lawfulness or enforceability of any exculpation clauses, clauses
relating to releases of unmatured claims, clauses purporting to waive unmatured
rights, severability clauses, and clauses similar in substance or nature to the
foregoing clauses in the Financing Documents, (iii) the validity or
enforceability of any provision of any of the Financing Documents which might be
construed as a waiver of counterclaims; (iv) any right to collect any payment
due to the extent that such payment constitutes a penalty or forfeiture; or (v)
any provision which purports to require indemnification for wrongful or
negligent acts of the person to be indemnified or to provide a waiver of causes
of action arising in the future for wrongful or negligent acts of any person.
(c) We have assumed, without any investigation, with respect to
each party thereto other than Borrower and Guarantors: (i) the full capacity,
power and authority of such party to execute, deliver and perform the Documents,
(ii) the due execution and delivery of the Financing Documents by such party,
and (iii) the legality, validity and binding effect of the Financing Documents
as against such party.
(d) We have assumed, without any investigation, the genuineness of
all signatures, the legal capacity of natural persons, the authenticity and
completeness of all documents submitted to us as originals, the conformity to
original documents submitted to us as certified, photostatic or telestatic
copies, and the authenticity and completeness of originals of such copies.
(e) We observe that provisions of the Financing Documents which
permit the Administrative Agent or the Lenders to take action or make
determinations, or to benefit from indemnities and similar undertakings of
Borrower or Guarantors, may be subject to a requirement that such action be
taken or such determinations be made, and that any action or inaction by the
Lenders or the Administrative Agent which may give rise to a request for payment
under such an undertaking be taken or not taken, on a reasonable basis in good
faith.
(f) Whenever our opinion is limited "to our knowledge," we are
referring to the actual knowledge of our attorneys which have been substantially
involved in the examination of the Financing Documents and we have, as to
factual matters, in rendering such opinion, relied exclusively on our review of
the Financing Documents and the representations and warranties of Borrower and
Guarantors contained therein. Such a limited opinion signifies only that during
the course of our representation of Borrower and Guarantors, no information has
come to our attention which would give us actual knowledge of the existence or
absence of such facts without any independent investigation by us which would
determine the existence or absence of such facts. No inference as to our
knowledge of the existence or absence of such facts shall be drawn from our
representation of Borrower and Guarantors. You are advised that our engagement
by Borrower has been limited to specific matters; consequently, there exist
matters of a legal nature involving Borrower about which we have not advised or
represented Borrower and of which we have no knowledge.
47
(g) We are members of the bar of the State of New York and do not
hold ourselves out as being expert in and, therefore, express no opinion as to
the laws of, any jurisdiction other than the State of New York and the general
federal law of the United States of America. This opinion is issued to the
Lenders and the Administrative Agent as of the date hereof and is necessarily
limited to the laws now in effect. This opinion is intended for use by the
Lenders and the Administrative Agent in connection with the Transactions and
does not extend to any other purpose and may not be relied upon by any other
Person (other than successors and assigns of the Lenders and the Administrative
Agent and Persons who acquire participations in the Loans) and no portion hereof
may be quoted or in any other way published or communicated without the express
written consent of the undersigned. No opinion may be inferred or implied beyond
the matters expressly stated herein and our opinions expressed herein must be
read in conjunction with the assumptions, limitations, exceptions, and
qualifications set forth in this letter.
Very truly yours,
48
EXHIBIT C
SUBSIDIARY GUARANTEE AGREEMENT
This Subsidiary Guarantee Agreement, dated as of June 2, 2000,
is executed by BUFFALO CHINA, INC, ENCORE PROMOTIONS, INC., and THC SYSTEMS
INC., each a New York corporation (individually, a "Guarantor" and,
collectively, the "Guarantors"), for the benefit of the Persons that now are or
at any time hereinafter become party as a Lender to the Credit Agreement
referred to below (the "Lenders"), THE CHASE MANHATTAN BANK, as Administrative
Agent under the Credit Agreement (in such capacity the "Administrative Agent"),
and all other present and future holders of any of the Guaranteed Obligations
described herein (all such Persons, collectively, including the Lenders and the
Administrative Agent, referred to as the "Beneficiaries").
RECITALS
A. Guarantor is a wholly owned subsidiary of Oneida Ltd., a
New York corporation (the "Borrower"). Borrower has requested that credit be
extended to the Borrower on terms and conditions set forth in the Credit
Agreement referred to below.
B. To induce the Lenders and Administrative Agent to enter
into the Credit Agreement and the other Loan Documents, and in consideration
thereof and of any and all credit at any time extended thereunder, Guarantor has
offered to enter into this Subsidiary Guarantee Agreement.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Guarantor hereby agrees for the benefit of each of the
Beneficiaries as follows:
1. Definitions.
1.1 The following capitalized terms shall have the meanings
set forth below for purposes of this Agreement:
"Credit Agreement" means the Credit Agreement dated as of the
date hereof between Borrower, the Lenders and the Administrative Agent, as the
same may hereafter be amended, modified, extended or restated from time to time.
"Discharge of the Guaranteed Obligations" means that all
Commitments of the Lenders to extend credit under the Credit Agreement have
irrevocably expired or been terminated and all Guaranteed Obligations have been
fully, finally and indefeasibly paid in cash.
"Guaranteed Obligations" means all debts, liabilities and
obligations of Borrower, whether now existing or hereafter incurred at any time
or times, direct or indirect, absolute or contingent, secured or unsecured,
arising under the Credit Agreement or any of the other Loan Documents, including
without limitation all principal, interest, premiums, commitment fees, up- front
fees, agency fees, legal fees or other fees and charges payable to the
Beneficiaries by the Borrower, and all late charges, penalties and reasonable
expenses of collection or enforcement or attempted collection or enforcement
thereof, including reasonable fees and disbursements of legal counsel in
connection therewith, whether within or apart from any legal action or
proceeding.
"Loan Documents" means the Credit Agreement and any other
agreement, document or instrument executed by the Borrower or any other Person,
delivered to the Administrative Agent or any of the Lenders, and pertaining to
any Guaranteed Obligations, as the same may hereafter be amended, modified,
extended or restated from time to time.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of a Guarantor, (b) the ability of a Guarantor to perform any of its
obligations under this Agreement, or (c) the rights or benefits available to the
Beneficiaries under this Agreement.
49
1.2 Other capitalized terms used herein which are not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement.
1.3 The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, and (d) all references herein to Sections,
shall be construed to refer to Sections of this Agreement.
2. Guarantee.
2.1 Each Guarantor, jointly and severally, hereby absolutely,
unconditionally and irrevocably guarantees to each of the Beneficiaries the
payment in full when due, by acceleration or otherwise, of all Guaranteed
Obligations. If an Event of Default occurs and notice of demand for payment
under this Agreement is given by the Administrative Agent or the Required
Lenders to Guarantors, all liability of Guarantors under this Agreement shall
become due and payable, without further notice or demand.
2.2 This Agreement constitutes a guarantee of payment and not
merely a guarantee of collection. The Beneficiaries shall not be required to
commence any action or proceeding to foreclose any security for the payment of
the Guaranteed Obligations or to pursue or exhaust any remedies against the
Borrower prior to the effectiveness of the Guarantors' obligation to pay the
full amount of the Guaranteed Obligations.
2.3 This Agreement is a continuing guarantee and shall remain
in full force and effect in respect of the Guarantors until the Discharge of the
Guaranteed Obligations.
2.4 The Guarantors' liability hereunder is in addition to and
independent of any other liabilities which the Guarantors have incurred or
assumed, or may hereafter incur or assume, by way of endorsement, separate
guarantee agreement, or in any other manner, with respect to all or any part of
the Guaranteed Obligations. This Agreement does not supersede nor limit any such
other liabilities of the Guarantors, and the Beneficiaries' rights and remedies
under and pursuant to this Agreement and any such other liabilities are
cumulative and may be exercised singly or concurrently.
3. Representation and Warranties.
The Guarantors jointly and severally represent and warrant
that:
3.1 Each Guarantor (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority and all licenses, permits and other approvals
of any Governmental Authority to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation 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 where the failure to so qualify or be in good standing
could not, individually or in the aggregate, have a Material Adverse Effect, and
(d) is in compliance with all applicable laws, rules and regulations except to
the extent that the failure to comply therewith could not, individually or in
the aggregate, have a Material Adverse Effect.
3.2 Each Guarantor has the corporate power and authority to
make, deliver and perform this Agreement and all other Loan Documents to which
it is a party, and has taken all necessary corporate action to
50
undertake and pay and perform all of its liabilities and obligations hereunder
and has taken all necessary corporate action to authorize the execution,
delivery, payment and performance hereof and thereof on the terms and conditions
set forth herein and therein. No consent, approval or authorization of, filing
with, notice to or other act by any Governmental Authority or any other Person
is required by any Guarantor in connection with the execution, delivery and
performance of this Agreement.
3.3 This Agreement has been duly executed and delivered on
behalf of each Guarantor. This Agreement constitutes a legal, valid and binding
obligation of each Guarantor enforceable against it in accordance with its terms
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether enforcement is sought in equity or at law).
3.4 The execution, delivery and performance of this Agreement
and other Loan Documents to which each Guarantor is a party will not violate any
law, rule or regulation or any indenture, agreement or other instrument to which
a Guarantor is a party or by which it or any of its property is bound and will
not result in the creation or imposition of any Lien on any of its properties or
revenues pursuant to any such law, rule or regulation or any such indenture,
agreement or other instrument.
3.5 After giving effect to the liability incurred by it under
this Agreement and the rights granted to it in Section 5 (including Guarantors'
ability to realize upon the rights granted to it under Section 5), (a) the fair
value of the assets of each Guarantor, at a fair valuation, will exceed its
debts and liabilities, subordinated, contingent or otherwise; (b) the present
fair saleable value of the property of each Guarantor will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Guarantor, on a going
concern basis, will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Guarantor will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted following such date. If,
notwithstanding the foregoing, enforcement of the liability of any Guarantor
under this Agreement for the full amount of the Guaranteed Obligations would be
an unlawful or voidable transfer under any applicable fraudulent conveyance or
fraudulent transfer law or any comparable law, then the liability of such
Guarantor hereunder shall be reduced to the highest amount for which such
liability may then be enforced without giving rise to an unlawful or voidable
transfer under any such law.
4. Guarantee Absolute.
4.1 The obligations of the Guarantors hereunder are absolute,
unconditional and irrevocable and shall not be subject to any counterclaim,
setoff, deduction, diminution, abatement, recoupment, suspension, deferment,
reduction or defense.
4.2 The Beneficiaries may at any time and from time to time
without the consent of or notice of any kind to the Guarantors, and without
regard to any demands or requests by the Guarantors, take any of the following
acts, upon or without any terms or conditions and in whole or in part, without
thereby incurring any liability to the Guarantors, impairing the Guarantors'
obligations under this Agreement or releasing the Guarantors from this
Agreement:
(a) change the rate of interest, penalties, manner,
place or terms of payment, change or extend the time of payment of the
Guaranteed Obligations, or renew, amend, alter or revoke any commitment,
condition, covenant, Event of Default or other provision with respect to any of
the Guaranteed Obligations, any security therefor, or any liability incurred
directly or indirectly in respect thereof, and this Agreement shall apply to
such Guaranteed Obligations as so changed, extended, renewed, amended or
altered;
(b) sell, exchange, release, surrender, realize upon
or otherwise deal with in any manner and in any order any property by whomsoever
at any time pledged or mortgaged to secure the Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly or indirectly
in respect thereof;
51
(c) waive, consent, extend, grant indulgence,
compromise, release, discharge or exercise or refrain from exercising any right,
remedy, power or privilege under or in respect of the Loan Documents or the
Borrower or any other party directly or indirectly liable upon the Guaranteed
Obligations;
(d) settle or compromise any Guaranteed Obligations,
any security therefor, or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and subordinate
the payment of all or any part thereof to the payment of any liability (whether
due or not) of Borrower to creditors of Borrower;
(e) apply any sum by whomsoever paid or howsoever
realized to such debts, liabilities, obligations, interest, or expenses of
collection owing by Borrower or the Guarantor to the Beneficiaries and in such
order as the Beneficiaries may elect pursuant to any right of the Beneficiaries,
whether guaranteed hereby or not, without regard to any rights of the Guarantor
in respect to the application thereof, and regardless of what Guaranteed
Obligations or other liability hereunder or portion thereof remains unpaid;
(f) omit to collect or enforce any collateral
security or other guarantees held by the Beneficiaries without regard to any
demand or request by the Guarantor; or
(g) fail or omit to perfect any security interest in
any collateral for the payment of the Guaranteed Obligations.
4.3 This Agreement shall remain in full force and effect
without regard to, and shall not be released, discharged or in any way affected
by, any of the following circumstances or conditions whatsoever:
(a) any failure, omission or delay on the part of the
Beneficiaries to comply with any term of the Loan Documents or any other
agreement or instrument applicable to any of the parties to the Loan Documents;
(b) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or similar proceeding with
respect to the Borrower or the Guarantors or any of their respective properties
or any action taken by any trustee or receiver or by any court in any such
proceeding; and
(c) any limitation on the liability or obligations of
the Borrower or any other Person under the Loan Documents or any other Person
referred to therein, or any discharge, termination, cancellation, frustration,
irregularity, invalidity or unenforceability, in whole or in part, of the Loan
Documents other than by reason of a Discharge of the Guaranteed Obligations.
4.4 Each Guarantor expressly waives any and all right to
notice from the Beneficiaries, the Borrower or any other Person of:
(a) any notice of any adverse change in the
Borrower's financial condition or of any other fact which might increase the
Guarantor's risk;
(b) all notices that may be required by statute, rule
of law or otherwise, now or hereafter in effect, to preserve intact any rights
against the Guarantor, including without limitation, any demand, presentment and
protest, proof of notice of nonpayment under the Loan Documents and notice of
default or any failure on the part of Borrower or any other Person, to perform
and comply with any covenant, agreement, term or condition of the Loan
Documents;
(c) any notice of any assignment, sale, transfer,
participation or other disposition of any right, title or interest in the Loan
Documents by the Beneficiaries;
(d) any requirement of diligence on the part of the
Beneficiaries or any other Person;
52
(e) any requirement to exhaust any remedies or to
mitigate the damages resulting from any Default under the Loan Documents; and
(f) any other circumstances whatsoever that might
otherwise constitute a legal or equitable discharge, release or defense of a
guarantor or surety, or that might otherwise limit recourse against the
Guarantor.
4.5 If claim is ever made upon a Beneficiary for repayment or
recovery of any amount or amounts received by the Beneficiary in payment or on
account of any of the Guaranteed Obligations, and such Beneficiary repays all or
part of said amount by reason of (a) any judgment, decree or order of any court
or administrative body having jurisdiction over the Beneficiary or any of the
Beneficiary's property, or (b) any settlement or compromise of any such claim
effected by the Beneficiary with any such claimant (including Borrower), then
and in such event the Guarantors agree that any such judgment, decree, order,
settlement or compromise shall be binding upon the Guarantors, and
notwithstanding any termination hereof or the cancellation of any Guaranteed
Obligations, the Guarantors shall be and remain liable to such Beneficiary
hereunder for the amounts so repaid or recovered to the same extent as if such
amount had never originally been received by the Beneficiary.
5. Reimbursement and Contribution Rights
5.1 Each Guarantor reserves the right to claim reimbursement
from the Borrower for the entire amount of any payment made by such Guarantor on
account of Guaranteed Obligations pursuant to this Agreement, but such Guarantor
agrees that its claim for reimbursement shall not arise until, and is subject in
all respects to, Discharge of the Guaranteed Obligations. Accordingly, each
Guarantor agrees not to assert, ▇▇▇ upon, collect or otherwise enforce against
the Borrower (by set-off or otherwise) any claim for reimbursement on account of
any payment made by a Guarantor hereunder until Discharge of the Guaranteed
Obligations.
5.2 Each Guarantor agrees that if the Borrower at any time
fails to pay any reimbursement due to a Guarantor as contemplated in subsection
5.1 and such failure continues for a period of 60 days after Discharge of the
Guaranteed Obligations, then if and to the extent any such unreimbursed payment
due to such Guarantor under this Agreement is such that the Aggregate
Unreimbursed Payments of such Guarantor are greater than its Fair Share of the
Aggregate Unreimbursed Payments of All Guarantors, the Guarantor shall be
entitled to a contribution from each other guarantor in the amount necessary to
cause Guarantor's Aggregate Unreimbursed Payments to equal its Fair Share. For
these purposes:
(i) "Fair Share" means an amount equal to (i) the
ratio of (x) the Adjusted Maximum Amount of a Guarantor to (y) the Adjusted
Maximum Amounts of All Guarantors, multiplied by (ii) the Aggregate Unreimbursed
Payments of All Guarantors.
(ii) "Adjusted Maximum Amount" means the maximum
aggregate amount of the liability of a Guarantor under this Subsidiary Guarantee
Agreement limited to the extent required under subsection 3.5 (except that, for
purposes solely of this calculation, any assets or liabilities arising by virtue
of any rights to or obligations of reimbursement or contribution under this
subsection 5.2 shall not be counted as assets or liabilities of such Guarantor).
(iii) "Aggregate Unreimbursed Payments" means, with
respect to a Person as of any date of determination, the aggregate net amount of
all payments made on or before such date by such Person under this Subsidiary
Guarantee Agreement or any other written instrument providing for the guarantee
of the Guaranteed Obligations for which reimbursement by the Borrower to such
Person is then due and payable as contemplated in subsection 5.1 but has not
been paid.
(iv) "All Guarantors" means the Guarantors under this
Agreement and any other Person who has entered into a written instrument
agreeing to guarantee the Guaranteed Obligations.
The allocation and right of contribution among the Guarantors set forth in this
subsection 5.2 shall not in any respect limit the Guarantors' liability under
this Subsidiary Guarantee Agreement to the Beneficiaries.
53
5.3 Guarantors hereby waive, release and discharge,
absolutely, unconditionally, irrevocably and forever, all rights of recourse,
reimbursement, contribution or indemnity and all other claims that Guarantors
might otherwise have or acquire against Borrower or any other Person liable for
the payment of any of the Guaranteed Obligations (including, without limitation,
the owner of any interest in collateral subject to a Lien securing any of the
Guaranteed Obligations) and all rights of subrogation that Guarantors might
otherwise have or acquire against any Beneficiary by reason of any payment made
by Guarantors under this Agreement or otherwise as a result of or in connection
with this Agreement, whether such rights or claims are conferred by agreement,
implied or created by law or otherwise, except only the reimbursement rights
reserved by Guarantors in subsection 5.1 and the contribution rights granted to
Guarantors under subsection 5.2.
6. Setoff. In the event that any amount becomes due and
payable hereunder and the Beneficiaries shall have demanded payment thereof from
Guarantors, in addition to all other rights and remedies, the Beneficiaries and
each and every affiliate of the Beneficiaries (and any Person holding a
participation interest in any of the Guaranteed Obligations) is hereby
irrevocably authorized, without prior notice to the Guarantors, to set off any
balances held for the account of or any other liability owing by the
Beneficiaries or any such affiliate or participant to Guarantors at any of their
offices against any of the Guaranteed Obligations, as the Beneficiaries or such
affiliate or participant may elect.
7. Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the Guarantors hereto shall
be in writing (including teletransmissions), shall be given or made at the
address or telecopier number set forth on the signature page hereto, or at such
other address or telecopier number as Guarantors may hereafter specify to the
Administrative Agent in writing, and (unless otherwise specified herein) shall
be deemed delivered on receipt if teletransmitted or delivered by hand or five
Business Days after mailing, and all mailed notices shall be by registered mail,
postage prepaid.
8. Expenses. Guarantors shall be jointly and severally liable
to the Beneficiaries and shall pay to the Beneficiaries immediately on demand
all costs and expenses of the Beneficiaries, including all reasonable fees and
disbursements of the Beneficiaries' counsel incurred in the collection or
enforcement or attempted collection or attempted enforcement of the
Beneficiaries' rights under this Agreement.
9. No Waiver of Remedies. No failure to exercise and no delay
in exercising, on the part of the Beneficiaries, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided under this Agreement are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York
without regard to any conflicts-of-laws rules.
11. Entire Agreement; Modifications. This Agreement contains
the entire agreement between the Beneficiaries and the Guarantors with respect
to all subject matters contained herein. This Agreement cannot be amended,
modified or changed in any way except by a written instrument executed by
Guarantors and accepted by the Administrative Agent.
12. Successors and Assigns. The covenants, representations,
warranties and agreements herein set forth shall be binding upon the Guarantors
and their successors and assigns and shall inure to the benefit of the
Beneficiaries, their successors and assigns.
13. Severability. The unenforceability or invalidity of any
provision or provisions of this Agreement shall not render any other provision
or provisions herein contained unenforceable or invalid.
14. Jurisdiction and Venue. For purposes of this Agreement,
each of the Guarantors and the Beneficiaries hereby irrevocably consents and
submits to the nonexclusive jurisdiction and venue of all federal and
54
state courts located in the State of New York. At the Beneficiaries' option, the
Guarantors may be joined in any action or proceeding commenced by the
Beneficiaries against Borrower in connection with or based on the Loan Documents
to which Borrower is a party, or any provision of any thereof, and recovery may
be had against the Guarantors in such action or proceeding or in any independent
action or proceeding against the Guarantors, without any requirement that the
Beneficiaries first assert, prosecute or exhaust any remedy or claim against
Borrower. Each Guarantor and each Beneficiary hereby irrevocably waives (to the
fullest extent permitted by applicable law) any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of, under or relating to this Agreement or any Loan Document brought in any
federal or state court located in the State of New York, and hereby further
irrevocably waives (to the fullest extent permitted by applicable law) any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Nothing in this Section shall affect any right
that the Beneficiaries may otherwise have to bring any action or proceeding
relating to this Agreement against any Guarantor or its properties in any
jurisdiction in which it may lawfully do so, provided that no such action or
proceeding may be commenced in a court located outside the United States except
an action or proceeding to enforce a judgment rendered by a court in the United
States in the courts of another jurisdiction. EACH GUARANTOR AND EACH
BENEFICIARY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY LOAN
DOCUMENT.
55
IN WITNESS WHEREOF, the Guarantors have executed this
Subsidiary Guarantee Agreement as of the date first written above.
BUFFALO CHINA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name:
Title:
Address: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (fax) #: (▇▇▇) ▇▇▇-▇▇▇▇
THC SYSTEMS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name:
Title:
Address: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (fax) #: (▇▇▇) ▇▇▇-▇▇▇▇
ENCORE PROMOTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name:
Title:
Address: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (fax) #: (▇▇▇) ▇▇▇-▇▇▇▇
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EXHIBIT D
SUBSIDIARY SUBORDINATION AGREEMENT
This Subsidiary Subordination Agreement (the "Agreement"), dated as of
June 2, 2000, is among ONEIDA LTD., a New York corporation ("Borrower"), BUFFALO
CHINA, INC., ENCORE PROMOTIONS, INC., and THC SYSTEMS, INC., each a New York
corporation (individually, a "Guarantor" and, collectively, the "Guarantors"),
and THE CHASE MANHATTAN BANK, as Administrative Agent (the "Administrative
Agent") for the Lenders which now or hereafter become parties to the Credit
Agreement referred to below (collectively referred to as the "Lenders").
RECITALS
A. The Lenders, the Administrative Agent and Borrower are parties to a
Credit Agreement dated as of June 2, 2000 (as amended, modified or restated from
time to time, the "Credit Agreement") establishing a senior unsecured revolving
credit facility in an aggregate amount of up to $275,000,000 (which amount may
be increased, under certain circumstances, to $285,000,000) in accordance with
the terms of the Credit Agreement.
B. Guarantors are subsidiaries of Borrower. Each of the Guarantors has
executed and delivered to the Administrative Agent a Subsidiary Guarantee
Agreement dated as of the date hereof (the "Guarantee Agreement") guarantying
repayment of the Borrower's obligations under the Credit Agreement.
D. Borrower from time to time extends credit to the Guarantors in the
form of loans, advances, accounts receivable, administrative services and
expenses, and other inter-company accommodations made by the Borrower to the
Guarantors.
F. The Lenders, as a condition to entering into the Credit Agreement
and providing the loans and advances thereunder, have required the Borrower and
the Guarantors to execute and deliver this Agreement.
NOW, THEREFORE, in order to induce the Lenders to enter into the Credit
Agreement and in consideration thereof, the Borrower and the Guarantors agree as
follows:
1. Definitions.
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1.1 As used herein, the following terms shall have the
following meanings:
"Credit Agreement" shall have the meaning given such term in
the Recitals.
"Event of Default" shall mean an Event of Default as defined
in the Credit Agreement (after giving effect to any applicable cure period)
which is not waived in writing by the Required Lenders.
"Guarantee Agreement" shall have the meaning given to such
term in the Recitals.
"Guaranteed Obligations" shall have the meaning given to such
term in the Guarantee Agreement.
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"Loan Documents" shall mean all credit accommodations, notes,
note agreements, and any other agreements and documents, now or hereafter
existing, creating, evidencing, guarantying, securing or relating to any or all
of the Senior Liabilities, together with all amendments, modifications,
renewals, or extensions thereof.
"Required Lenders" Shall have the meaning given to such term
in the Credit Agreement.
"Senior Liabilities" shall mean all liabilities of the
Guarantors to the Administrative Agent and the Lenders under the Guarantee
Agreements, including, without limitation, the principal amount of all
Guaranteed Obligations and all interest payable in respect thereof, together
with all fees, late charges, premiums, costs and expenses payable under the
Guarantee Agreements.
"Subordinated Liabilities" shall mean all liabilities of each
of the Guarantors to the Borrower for loans, advances, accounts receivable,
administrative services and expenses, and all other inter-company
accommodations, including, without limitation, all amounts in the inter-company
account maintained by Borrower on behalf of each of the Guarantors.
"Subordinated Loan Documents" shall mean all credit
accommodations, notes, loan agreements and any other agreements and documents,
now or hereafter existing, creating, evidencing, guarantying, securing or
relating to any or all of the Subordinated Liabilities, together with all
amendments, modifications, renewals or extensions thereof.
1.2 Other capitalized terms used herein which are not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement.
1.3 The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, and (d) all references herein to Sections,
shall be construed to refer to Sections of this Agreement.
2. Subordination.
2.1 Subordination to Senior Liabilities. Except as set forth
in Section 2.2 of this Agreement or as the Required Lenders may hereinafter
otherwise expressly consent in writing, the payment of all Subordinated
Liabilities shall be postponed and subordinated to the payment in full of all
Senior Liabilities, and no payments or other distributions whatsoever,
including, without limitation, payments of interest in respect of any
Subordinated Liabilities, shall be made, nor shall any property or assets of the
Guarantors be applied to the purchase or other acquisition or retirement of any
Subordinated Liabilities, nor given as collateral security to secure repayment
of same.
2.2 Permitted Payments. Notwithstanding anything in Section
2.1 to the contrary, until such time as an Event of Default occurs, Guarantors
may make, and Borrower may receive, payments of principal and interest on
account of Subordinated Liabilities in a manner consistent with past practice.
Upon the occurrence of an Event of Default, all payments on account of
Subordinated Liabilities shall automatically cease, and Guarantors shall not
make, and Borrower shall not receive, any such payments unless the Lenders shall
expressly consent thereto in writing.
2.3 Rights of Lenders to Collect Subordinated Liabilities. In
the event of, and commencing with the date thereof, any dissolution, winding up,
liquidation, reorganization or other similar proceedings relating to
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any Guarantor or to its creditors or its property (whether voluntary or
involuntary, partial or complete, and whether in bankruptcy, insolvency or
receivership, or upon an assignment for the benefit of creditors, or any other
marshalling of the assets and liabilities of a Guarantor, or any sale of all or
substantially all of the assets of a Guarantor), the Senior Liabilities shall
first be paid in full before the Borrower shall be entitled to receive and/or to
retain any payment or distribution in respect of the Subordinated Liabilities,
and in order to implement the foregoing: (i) all payments and distributions of
any kind or character in respect of the Subordinated Liabilities to which the
Borrower would be entitled but for the provisions of this Agreement will be made
directly to the Lenders; and (ii) the Borrower shall promptly file a claim or
claims, in the form required in such proceedings, for the full outstanding
amount of the Subordinated Liabilities, and shall cause said claim or claims to
be approved and all payments and other distributions in respect thereof to be
made directly to the Lenders.
2.4 Protection of Lenders' Rights in Subordinated Liabilities.
In the event that, after the occurrence of an Event of Default, the Borrower
receives any payment or other distribution of any kind or character from any
Guarantor or any other source whatsoever in respect of any of the Subordinated
Liabilities, other than as expressly permitted by the terms of this Agreement,
such payment or other distribution shall be received in trust for the Lenders
and promptly turned over by the Borrower to the Administrative Agent. The
Borrower will cause to be clearly inserted in any promissory note or other
instrument which at any time evidences any of the Subordinated Liabilities a
statement to the effect that the payment thereof is subordinated in accordance
with the terms of this Agreement. The Borrower will execute such further
documents and instruments and take such further action as the Lenders may from
time to time reasonably request to carry out the intent of this Agreement. The
Borrower hereby irrevocably appoints the Administrative Agent its attorney in
fact, said appointment being coupled with an interest, to execute such further
documents and instruments and take such further action on behalf of the Borrower
as the Administrative Agent may from time to time deem reasonable to carry out
the intent of this Agreement, including, without limitation, the actions set
forth in Section 2.3 hereof.
2.5 Treatment of Payment of Subordinated Liabilities. All
payments and distributions received by the Lenders in respect of the
Subordinated Liabilities, to the extent received in or converted into cash, may
be applied by the Lenders first to the payment of any and all expenses
(including attorneys' fees and disbursements and the allocated fees, expenses
and cost of in-house counsel) paid or incurred by the Administrative Agent or
the Lenders in enforcing this Agreement or in endeavoring to collect or realize
upon any of the Subordinated Liabilities, and any balance thereof shall be
applied by the Administrative Agent toward the payment of the Senior Liabilities
in accordance with the terms of the Credit Agreement.
2.6 Prohibition on Changes in Subordinated Liabilities. The
Borrower will not, without the prior written consent of the Lenders: (i) cancel,
waive, or forgive any Subordinated Liabilities or any rights in respect thereof,
or (ii) convert any Subordinated Liabilities into capital stock of the
Guarantors.
2.7 Continuing Agreement. This Agreement shall in all respects
be a continuing agreement and shall remain in full force and effect until all
Senior Liabilities have been paid in full.
2.8 Permitted Changes in Senior Liabilities. The Lenders may,
from time to time, take any or all of the following actions without affecting
the subordination set forth in this Agreement: (i) retain or obtain a security
interest in any property to secure any of the Senior Liabilities; (ii) retain or
obtain the primary or secondary obligation of any other person with respect to
any of the Senior Liabilities; (iii) extend, renew, alter or exchange any of the
Senior Liabilities; (iv) release or compromise any obligation of any nature of
any Guarantor with respect to any of the Senior Liabilities; and (v) release any
security interest or lien in, allow a security interest or lien to be
unperfected, surrender, release or permit any substitution or exchange for, all
or any part of any property securing any of the Senior Liabilities, or extend,
renew or release, compromise, alter or exchange any obligations of any nature of
any Guarantor with respect to any such property.
3. Representations and Warranties. Each of the Borrower and each
Guarantor hereby represents and warrants that: (i) it has the necessary power
and capacity to make and perform this Agreement and such making and performance
have been duly authorized by all necessary corporate action; (ii) the making and
performance of this Agreement does not and will not violate any provision of law
or regulation or result in the breach of, or constitute a default or require any
consent under, any indenture or other agreement or instrument to which it is a
party or by
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which any of its properties may be bound; and (iii) this Agreement is the legal,
valid and binding obligation of the Borrower and each Guarantor, enforceable in
accordance with its terms.
4. Additional Subordinated Liabilities. If, under the terms of
the Credit Agreement, any other Material Domestic Subsidiary of Borrower (as
that term is defined in the Credit Agreement) becomes obligated to deliver to
the Administrative Agent a written guarantee of amounts due under the Credit
Agreement, Borrower agrees to subordinate all liabilities of such Subsidiary to
the Borrower for loans, advances, accounts receivable, administrative services
and expenses and other inter-company accommodations to the prior payment of the
such Subsidiary's liability under the written guarantee. Borrower agrees to
execute, and to cause such Subsidiary to execute, a subordination agreement in
form and substance similar to this Agreement.
5. Miscellaneous.
5.1 Remedies Cumulative: No Waiver. The rights, powers and
remedies of the Administrative Agent and the Lenders provided in this Agreement
and any of the Loan Documents are cumulative and not exclusive of any right,
power or remedy provided by law or equity. No failure or delay on the part of
the Administrative Agent or the Lenders in the exercise of any right, power or
remedy shall operate as a waiver thereof, nor shall any single or partial
exercise preclude any other or further exercise thereof, or the exercise of any
other right, power or remedy.
5.2 Notices. Notices and communications under this Agreement
shall be in writing and shall be given by: (i) hand delivery, (ii) first class
mail (postage prepaid), or (iii) reliable overnight commercial courier (charges
prepaid). Notice by overnight courier shall be deemed to have been given and
received on the date scheduled for delivery. Notice by mail shall be deemed to
have been given and received three (3) calendar days after the date first
deposited in the United States mail. Notice by hand delivery shall be deemed to
have been given and received upon delivery. All notices to the Lenders shall be
addressed to the Administrative Agent. Notices shall be sent or delivered to the
addresses of the parties set forth in the Credit Agreement or Guarantee
Agreements, as the case may be.
5.3 Governing Law. This Agreement shall be construed in
accordance with and governed by the substantive laws of the State of New York
without reference to conflict of laws principles.
5.4 Integration; Amendment. This Agreement and the other Loan
Documents constitute the sole agreement of the parties with respect to the
subject matter hereof and thereof and supersede all oral negotiations and prior
writings with respect to the subject matter hereof and thereof. No amendment of
this Agreement, and no waiver of any one or more of the provisions hereof, shall
be effective unless set forth in writing and signed by the parties hereto.
5.5 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective heirs,
executors, administrators, successors and permitted assigns.
5.6 Severability. The illegality, unenforceability or
inconsistency of any provision of this Agreement shall not affect or impair the
legality, enforceability or consistency of the remaining provisions of this
Agreement.
5.7 Judicial Proceedings; Waivers. For purposes of this
Agreement, the parties hereby irrevocably consent and submit to the nonexclusive
jurisdiction and venue of all federal and state courts located in the State of
New York. Each party hereby irrevocably waives (to the fullest extent permitted
by applicable law) any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of, under or relating to
this Agreement or any Loan Document brought in any federal or state court
located in the State of New York, and hereby further irrevocably waives (to the
fullest extent permitted by applicable law) any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Nothing in this Section shall affect any right that the Administrative
Agent and the Lenders may otherwise have to bring any action or proceeding
relating to this Agreement against any Guarantor or its properties in any
jurisdiction in which it may lawfully do so, provided that no such action or
proceeding may be commenced in a court located outside the
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United States except an action or proceeding to enforce a judgment rendered by a
court in the United States in the courts of another jurisdiction. EACH PARTY
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY LOAN DOCUMENT.
5.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date set forth above.
ONEIDA LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Corporate Senior Vice President, Finance
BUFFALO CHINA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:____________________________________
THC SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:____________________________________
ENCORE PROMOTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: ___________________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Vice President
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EXHIBIT E
SHARING AGREEMENT
SHARING AGREEMENT dated as of June 2, 2000 among The Chase Manhattan
Bank, as Administrative Agent (the "Administrative Agent"), the financial
institutions that are parties to the Credit Agreement referred to below (each
such institution is referred to herein as a "Lender" and. Together with the
Adminstrative Agent, are collectively referred to herein as "Lenders") and
Allstate Life Insurance Company, Allstate Insurance Company and Pacific Mutual
Life Insurance Company (each institution is referred to herein either as a "1992
Noteholder" (as defined in Recital A below) or a "1996 Noteholder" (as defined
in Recital A below)) and the 1992 Noteholders and the 1996 Noteholders and the
Lenders are individually referred to herein as a "Creditor" and are collectively
referred to herein as the "Creditors").
RECITALS:
A. Under and pursuant to a Note Agreement dated as of November 15, 1996
(as such agreement may be modified, amended, renewed or replaced, the "1996 Note
Agreement"), between THC Systems, Inc., a New York corporation, Oneida Ltd., a
New York corporation (the "Parent"), and Allstate Life Insurance Company,
Allstate Insurance Company and Pacific Mutual Life Insurance Company (the "1996
Noteholders"), THC Systems, Inc. has issued and sold to the 1996 Noteholders
$35,000,000 aggregate principal amount of its 7.49% Senior Notes due November 1,
2008 (the "1996 Notes"). Under and pursuant to a Note Agreement dated as of
January 1, 1992 (as such agreement may be modified, amended, renewed or
replaced, the "1992 Note Agreement") between the Parent, Allstate Life Insurance
Company and Pacific Mutual Life Insurance Company (the "1992 Noteholders"), the
Parent has issued and sold to the 1992 Noteholders $30,000,000 principal amount
of its 8.52% Senior Notes due January 15, 2002 (the "1992 Notes") (the 1992 Note
Agreement and the 1996 Note Agreement being collectively referred to as the
"Note Agreements" and the 1992 Notes and the 1996 Notes being hereinafter
collectively referred to as the "Notes").
B. Under and pursuant to that certain Credit Agreement dated as of June
2, 2000 (as such agreement may be modified, amended, renewed or replaced,
including any increase in the amount thereof, the "Credit Agreement") among the
Parent and the Lenders, the Lenders have made available to the Parent certain
credit facilities in a current aggregate principal amount up to $285,000,000
(all amounts outstanding in respect of said credit facilities being hereinafter
collectively referred to as the "Loans").
C. In connection with the execution of the Bank Credit Agreement and as
support for the Loans made thereunder, THC Systems, Inc., Buffalo China, Inc.
and Encore Promotions, Inc., each of which are wholly-owned subsidiaries of the
Parent (together with any other subsidiaries of the Parent required from time to
time to execute and deliver a subsidiary guarantee pursuant to the provisions of
the 1992 Note Agreement, the 1996 Note Agreement or the Credit Agreement,
collectively, the "Subsidiary Guarantors") have guaranteed to the Lenders the
payment of the Loans and all other obligations of the Parent arising in
connection with the transactions contemplated by the Credit Agreement under
certain subsidiary guarantees (as such guarantees may be modified, amended,
renewed or replaced, including any increase in the amount thereof, and together
with any other subsidiary guarantee executed and delivered from time to time
pursuant to the provisions of the Credit Agreement, collectively, the "Lender
Guaranty").
D. The Subsidiary Guarantors have entered into subsidiary guarantees
dated as of various dates with respect to the 1992 Notes and the 1996 Notes (as
such subsidiary guarantees may be modified, amended, renewed or replaced and,
together with any other subsidiary guarantee executed and delivered from time to
time pursuant to the provisions of the Note Agreements, collectively, the
"Noteholder Guaranty") pursuant to which (a) Buffalo China, Inc. and Encore
Promotions, Inc. have guaranteed to the holders of the 1996 Notes the payment of
the principal of, premium, if any, and interest on the 1996 Notes and the
payment of all other obligations of THC Systems, Inc. arising in connection with
the transactions contemplated by the 1996 Note Agreement and (b) Buffalo China,
Inc.,
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THC Systems, Inc. and Encore Promotions, Inc. have guaranteed to the holders of
the 1992 Notes the payment of the principal of, premium, if any, and interest on
the 1992 Notes and the payment of all other obligations of the Parent arising in
connection with the transactions contemplated by the 1992 Note Agreement. The
Lender Guaranty and the Noteholder Guaranty are each hereinafter referred to as
a "Subsidiary Guarantee".
E. In consideration of the mutual benefit to be provided hereby and
intending to be legally bound, the Lenders and the Noteholders have agreed to
enter into this Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS.
The following terms shall have the meanings assigned to them below in
this SS.1 or in the provisions of this Agreement referred to below:
"Bankruptcy Proceeding" shall mean, with respect to any person, a
general assignment of such person for the benefit of its creditors, or the
institution by or against such person of any proceeding seeking relief as
debtor, or seeking to adjudicate such person as bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of such person or
its debts, under any law relating to bankruptcy, insolvency, reorganization or
relief of debtors, or seeking appointment of a receiver, trustee, custodian or
other similar official for such person or for any substantial part of its
property.
"Credit Agreement" shall have the meaning assigned thereto in the
Recitals hereof.
"Creditor" shall have the meaning assigned thereto in the introductory
paragraph hereto.
"Excess Sharing Payment" shall mean as to any Creditor an amount equal
to the Sharing Payment received by such Creditor less the Pro Rata Share of
Sharing Payments to which such Creditor is then entitled.
"Lender" shall have the meaning assigned thereto in the introductory
paragraph hereto.
"Lender Guaranty" shall have the meaning assigned thereto in the
Recitals hereof.
"Loans" shall have the meaning assigned thereto in the Recitals hereof.
"1992 Notes" shall have the meaning assigned thereto in the Recitals
hereof.
"1992 Note Agreement" shall have the meaning assigned thereto in the
Recitals hereof.
"1996 Notes" shall have the meaning assigned thereto in the Recitals
hereof.
"1996 Note Agreement" shall have the meaning assigned thereto in the
Recitals hereof.
"Noteholder" shall have the meaning assigned thereto in the
introductory paragraph hereto.
"Noteholder Guaranty" shall have the meaning assigned thereto in the
Recitals hereof.
"Notes" shall have the meaning assigned thereto in the Recitals hereof.
"Parent" shall have the meaning assigned thereto in the Recitals
hereof.
"Pro Rata Share of Sharing Payments" shall mean as of the date of any
Sharing Payment to a Creditor an amount equal to the product obtained by
multiplying (x) the amount of all Sharing Payments made to all Creditors
64
concurrently with the payments to such Creditors in connection with the
collection of such Sharing Payments by (y) fraction, the numerator of which
shall be the Specified Amount owing to such Creditor, and the denominator of
which is the aggregate amount of all outstanding Subject Obligations (without
giving effect in the denominator to the application of any such Sharing
Payments).
"Receiving Creditor" shall have the meaning assigned thereto in Section
2.
"Sharing Payment" shall have the meaning assigned thereto in Section 2.
"Specified Amount" shall mean as to any Creditor the aggregate amount
of the Subject Obligations owed to such Creditor.
"Subject Obligations" shall mean all principal of, premium, if any, and
interest on, the Notes and the Loans and all other obligations of THC Systems,
Inc. or the Parent under or in respect of the Notes and the Loans and under the
Note Agreements and the Credit Agreement; provided that any amount of such
Subject Obligations which is not allowed as a claim enforceable against the
Parent or THC Systems, Inc. in a Bankruptcy Proceeding under applicable law
shall be excluded from the computation of "Subject Obligations" hereunder.
"Subsidiary Guarantors" shall have the meaning assigned thereto in the
Recitals hereof.
"Subsidiary Guarantee" shall have the meaning assigned thereto in the
Recitals hereof.
Section 2. SHARING OF RECOVERIES.
Each Creditor hereby agrees with each other Creditor that (a) payments
made pursuant to terms of a Subsidiary Guarantee or (b) payments (other than
regularly scheduled payments of principal and interest) made with respect to the
1996 Notes by THC Systems, Inc. (collectively, "Sharing Payments" or
individually, a "Sharing Payment") (x) within 90 days prior to the commencement
of a Bankruptcy Proceeding or at any time thereafter with respect to any
Subsidiary Guarantor or THC Systems, Inc. (with respect to the 1996 Note
Agreement) or the Parent or (y) following the acceleration of the 1992 Notes or
the 1996 Notes or the Loans, shall be shared so that each Creditor shall receive
its Pro Rata Share of Sharing Payments. Accordingly, each Creditor hereby agrees
that in the event (a) an event described in clauses (x) or (y) above shall have
occurred, (b) any Creditor shall receive a Sharing Payment (a "Receiving
Creditor"), and (c) any other Creditor shall not concurrently receive its Pro
Rata Share of Sharing Payments from the same Subsidiary Guarantor or THC
Systems, Inc. in connection with Sharing Payments made pursuant to clause (b)
above, then the Receiving Creditor shall promptly remit the Excess Sharing
Payment to each other Creditor who shall then be entitled thereto so that after
giving effect to such payment (and any other payments then being made by any
other Receiving Creditor pursuant to this Section 2) each Creditor shall have
received its Pro Rata Share of Sharing Payments.
Any such payments shall be deemed to be and shall be made in
consideration of the purchase for cash at face value, but without recourse,
ratably from the other Creditors of such amount of the 1992 Notes or the 1996
Notes or Loans (or interest therein), as the case may be, to the extent
necessary to cause such Creditor to share such Excess Sharing Payment with the
other Creditors as hereinabove provided; provided, however, that if any such
purchase or payment is made by any Receiving Creditor and if such Excess Sharing
Payment or part thereof is thereafter recovered from such Receiving Creditor by
any Subsidiary Guarantor or by THC Systems, Inc. in connection with Sharing
Payments made pursuant to clause (b) of the preceding paragraph (including,
without limitation, by any trustee in bankruptcy of any Subsidiary Guarantor or
any creditor thereof), the related purchase from the other Creditors shall be
rescinded ratably and the purchase price restored as to the portion of such
Excess Sharing Payment so recovered, but without interest; and provided further
nothing herein contained shall obligate any Creditor to resort to any setoff,
application of deposit balance or other means of payment or avail itself of any
recourse by resort to any property of THC Systems, Inc. or the Parent or any
Subsidiary Guarantor, the taking of any such action to remain within the
absolute discretion of such Creditor without obligation of any kind to other
Creditors to take any such action.
65
Section 3. AGREEMENTS AMONG THE CREDITORS.
Section 3.1. Independent Actions by Creditors. Nothing contained in
this Agreement shall prohibit any Creditor from accelerating the maturity of, or
demanding payment from any Subsidiary Guarantor on, any Subject Obligation of
the Parent or THC Systems, Inc. to such Creditor or from instituting legal
action against THC Systems, Inc. or the Parent or any Subsidiary Guarantor or
THC Systems, Inc. in connection with a Sharing Payment to obtain a judgment or
other legal process in respect of such Subject Obligation, but any funds
received from any Subsidiary Guarantor or THC Systems, Inc. in connection with a
Sharing Payment in connection with any recovery therefrom shall be subject to
the terms of this Agreement.
Section 3.2. Relation of Creditors. This Agreement is entered into
solely for the purpose set forth herein, and no Creditor assumes any
responsibility to any other party hereto to advise such other party of
information known to such other party regarding the financial condition of the
Parent, THC Systems, Inc. or any Subsidiary Guarantor or of any other
circumstances bearing upon the risk of nonpayment of any Subject Obligation.
Each Creditor specifically acknowledges and agrees that nothing contained in
this Agreement is or is intended to be for the benefit of THC Systems, Inc. or
the Parent or any Subsidiary Guarantor and nothing contained herein shall limit
or in any way modify any of the obligations of THC Systems, Inc. or the Parent
or any Subsidiary Guarantor to the Creditors.
SECTION 4. MISCELLANEOUS
Section 4.1. Entire Agreement. This Agreement represents the entire
Agreement among the Creditors and, except as otherwise provided, this Agreement
may not be altered, amended or modified except in a writing executed by all
parties to this Agreement.
Section 4.2. Notices. Notices hereunder shall be given to the Creditors
at their addresses as set forth in the Note Agreements or the Credit Agreement,
as the case may be, or at such other address as may be designated by each in a
written notice to the other parties hereto.
Section 4.3. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of each of the Creditors and their respective
successors and assigns (including, without limitation, any holder of a
participation interest in any Subject Obligation), whether so expressed or not,
and, in particular, shall inure to the benefit of and be enforceable by any
future holder or holders of any Subject Obligations, and the term "Creditor"
shall include any such subsequent holder of Subject Obligations, wherever the
context permits.
Section 4.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
Section 4.5. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one Agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
Section 4.6. Sale of Interest. No Creditor will sell, transfer or
otherwise dispose of any interest in the Subject Obligations unless such
purchaser or transferee shall agree, in writing, to be bound by the terms of
this Agreement.
Section 4.7. Severability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal, or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date set forth above.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Authorized Signatories
ALLSTATE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Authorized Signatories
PACIFIC MUTUAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date set forth above.
THE CHASE MANHATTAN BANK
(as Administrative Agent and as Lender)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-------------------------------
Title: Vice President
HSBC BANK, USA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Banking Officer
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President
BANK OF AMERICA, N.A.,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title Managing Director
EUROPEAN AMERICAN BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Vice President
BANCA NAZIONALE DEL LAVORO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: First Vice President
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SCHEDULE 2.01
Lenders' Commitments
Name of Lender Amount of Commitment
-------------- --------------------
The Chase Manhattan Bank $ 45,000,000
Bank of America, N.A. $ 35,000,000
Fleet National Bank $ 45,000,000
HSBC Bank, USA $ 45,000,000
Manufacturers and Traders
Trust Company $ 40,000,000
Bank of Nova Scotia $ 35,000,000
European American Bank $ 15,000,000
Banca Nazionale Del Lavoro $ 15,000,000
-----------
TOTAL $ 275,000,000
===========
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