CONFORMED COPY
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$175,000,000
CREDIT AGREEMENT
DATED AS OF APRIL 29, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INDUSTRIES, INC.,
THE LENDERS PARTY HERETO,
THE CHASE MANHATTAN BANK
AS ADMINISTRATIVE AGENT, COLLATERAL AGENT AND SWINGLINE LENDER,
BANKBOSTON, N.A.,
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS CO-AGENTS,
CHASE MANHATTAN BANK DELAWARE,
AS ISSUING BANK,
[GRAPHIC OMITTED]
CHASE
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS........................................... 2
SECTION 1.02. TERMS GENERALLY......................................... 16
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS............................................. 17
SECTION 2.02. LOANS................................................... 17
SECTION 2.03. BORROWING PROCEDURE..................................... 18
SECTION 2.04. EVIDENCE OF DEBT; REPAYMENT OF LOANS.................... 19
SECTION 2.05. FEES.................................................... 19
SECTION 2.06. INTEREST ON LOANS....................................... 20
SECTION 2.07. DEFAULT INTEREST........................................ 21
SECTION 2.08. ALTERNATE RATE OF INTEREST.............................. 22
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS................ 22
SECTION 2.10. CONVERSION AND CONTINUATION OF BORROWINGS.............. 22
SECTION 2.11. REPAYMENT OF TERM BORROWINGS............................ 23
SECTION 2.12. OPTIONAL PREPAYMENT..................................... 25
SECTION 2.13. MANDATORY PREPAYMENTS................................... 25
SECTION 2.14. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES........... 27
SECTION 2.15. CHANGE IN LEGALITY...................................... 28
SECTION 2.16. INDEMNITY............................................... 29
SECTION 2.17. PRO RATA TREATMENT...................................... 29
SECTION 2.18. SHARING OF SETOFFS...................................... 29
SECTION 2.19. PAYMENTS................................................ 30
SECTION 2.20. TAXES................................................... 30
SECTION 2.21. ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES;
DUTY TO MITIGATE................................. 32
SECTION 2.22. SWINGLINE LOANS......................................... 33
SECTION 2.23. LETTERS OF CREDIT....................................... 34
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. ORGANIZATION; POWERS.................................... 38
SECTION 3.02. AUTHORIZATION........................................... 38
SECTION 3.03. ENFORCEABILITY.......................................... 38
SECTION 3.04. GOVERNMENTAL APPROVALS.................................. 38
SECTION 3.05. FINANCIAL STATEMENTS.................................... 38
SECTION 3.06. NO MATERIAL ADVERSE CHANGE.............................. 39
SECTION 3.07. TITLE TO PROPERTIES; POSSESSION UNDER LEASES............ 39
SECTION 3.08. SUBSIDIARIES............................................ 39
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS........................ 39
SECTION 3.10. AGREEMENTS.............................................. 40
SECTION 3.11. FEDERAL RESERVE REGULATIONS............................. 40
SECTION 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT 40
SECTION 3.13. USE OF PROCEEDS......................................... 40
SECTION 3.14. TAX RETURNS............................................. 40
SECTION 3.15. NO MATERIAL MISSTATEMENTS............................... 40
SECTION 3.16. EMPLOYEE BENEFIT PLANS.................................. 41
SECTION 3.17. ENVIRONMENTAL MATTERS................................... 41
SECTION 3.18. INSURANCE............................................... 42
SECTION 3.19. SECURITY DOCUMENTS...................................... 42
SECTION 3.20. LOCATION OF REAL PROPERTY AND LEASED PREMISES........... 43
SECTION 3.21. LABOR MATTERS........................................... 43
SECTION 3.22. SOLVENCY................................................ 43
SECTION 3.23. EXISTING LETTERS OF CREDIT.............................. 43
SECTION 3.24. SENIOR INDEBTEDNESS..................................... 43
SECTION 3.25. YEAR 2000............................................... 43
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. ALL CREDIT EVENTS....................................... 44
SECTION 4.02. FIRST CREDIT EVENT...................................... 44
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES.................... 48
SECTION 5.02. INSURANCE............................................... 48
SECTION 5.03. OBLIGATIONS AND TAXES................................... 49
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC...................... 50
SECTION 5.05. LITIGATION AND OTHER NOTICES............................ 51
SECTION 5.06. EMPLOYEE BENEFITS....................................... 51
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND INSPECTIONS 51
SECTION 5.08. USE OF PROCEEDS......................................... 51
SECTION 5.09. COMPLIANCE WITH ENVIRONMENTAL LAWS...................... 51
SECTION 5.10. PREPARATION OF ENVIRONMENTAL REPORTS.................... 51
SECTION 5.11. FURTHER ASSURANCES...................................... 52
SECTION 5.12. MORTGAGED PROPERTY CASUALTY AND CONDEMNATION............ 52
SECTION 5.13. COMPLIANCE WITH LAWS.................................... 55
SECTION 5.14. INFORMATION REGARDING COLLATERAL........................ 56
SECTION 5.15. DELIVERY OF POST-CLOSING LEASEHOLD MORTGAGE............. 56
SECTION 5.16. DELIVERY OF POST-CLOSING CERTIFICATES OF OCCUPANCY...... 56
SECTION 5.17. DELIVERY OF POST-CLOSING INTELLECTUAL PROPERTY SCHEDULES TO
THE SECURITY AGREEMENT.......................... 57
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. INDEBTEDNESS............................................ 57
SECTION 6.02. LIENS................................................... 58
SECTION 6.03. SALE AND LEASE-BACK TRANSACTIONS........................ 59
SECTION 6.04. INVESTMENTS, LOANS AND ADVANCES......................... 59
SECTION 6.05. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND ACQUISITIONS 60
SECTION 6.06. DIVIDENDS AND DISTRIBUTIONS; RESTRICTIONS ON ABILITY OF
SUBSIDIARIES TO PAY DIVIDENDS.................... 61
SECTION 6.07. TRANSACTIONS WITH AFFILIATES............................ 62
SECTION 6.08. OTHER INDEBTEDNESS AND AGREEMENTS....................... 62
SECTION 6.09. CAPITAL EXPENDITURES.................................... 62
SECTION 6.10. TOTAL DEBT RATIO........................................ 63
SECTION 6.11. INTEREST COVERAGE RATIO................................. 63
SECTION 6.12. NET WORTH............................................... 63
SECTION 6.13. BANK ACCOUNTS........................................... 63
SECTION 6.14. BUSINESS OF BORROWER AND SUBSIDIARIES................... 63
SECTION 6.15. FISCAL YEAR............................................. 63
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES................................................. 67
SECTION 9.02. SURVIVAL OF AGREEMENT................................... 67
SECTION 9.03. BINDING EFFECT.......................................... 68
SECTION 9.04. SUCCESSORS AND ASSIGNS.................................. 68
SECTION 9.05. EXPENSES; INDEMNITY..................................... 70
SECTION 9.06. RIGHT OF SETOFF......................................... 71
SECTION 9.07. APPLICABLE LAW.......................................... 71
SECTION 9.08. WAIVERS; AMENDMENT...................................... 71
SECTION 9.09. INTEREST RATE LIMITATION................................ 72
SECTION 9.10. ENTIRE AGREEMENT........................................ 72
SECTION 9.11. WAIVER OF JURY TRIAL.................................... 72
SECTION 9.12. SEVERABILITY............................................ 72
SECTION 9.13. COUNTERPARTS............................................ 73
SECTION 9.14. HEADINGS................................................ 73
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS............. 73
SECTION 9.16. CONFIDENTIALITY......................................... 73
Schedule 1.01(a) Guarantors
Schedule 1.01(b) Mortgaged Properties
Schedule 2.01 Commitments
Schedule 3.07(a) Certain Encumbrances
Schedule 3.07(c) Condemnation Proceedings
Schedule 3.08 Subsidiaries
Schedule 3.09(a) Litigation
Schedule 3.09(b) Compliance with Laws
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.19(d) Mortgage Filing Offices
Schedule 3.20(a) Owned Real Property
Schedule 3.20(b) Leased Real Property
Schedule 3.23 Existing Letters of Credit
Schedule 4.02(a) Local Counsel
Schedule 6.01(a) Indebtedness
Schedule 6.02(a) Liens
Schedule 6.04(a) Investments
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of ▇▇▇▇▇▇▇ Pledge and Security Agreement
Exhibit E Form of Guarantee Agreement
Exhibit F Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit G-1 Form of Mortgage
Exhibit G-2 Form of Leasehold Mortgage
Exhibit H Form of Pledge Agreement
Exhibit I Form of Security Agreement
Exhibit J-1 Form of Opinion of Winston & ▇▇▇▇▇▇, Counsel
for the Borrower and the Subsidiaries
Exhibit J-2 Form of Opinion of Local Counsel
CREDIT AGREEMENT dated as of April 29, 1999
(this "Agreement"), among JOHNSTOWN AMERICA
INDUSTRIES, INC., a Delaware corporation (the
"BORROWER"), the Lenders (as defined in Article I),
THE CHASE MANHATTAN BANK, a New York banking
corporation, as swingline lender (in such capacity,
the "SWINGLINE LENDER"), as administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT"), and as
collateral agent (in such capacity, the "COLLATERAL
AGENT") for the Lenders, BANKBOSTON, N.A. and THE
FIRST NATIONAL BANK OF CHICAGO, as co-agents (in such
capacity, the "CO-AGENTS"), and CHASE MANHATTAN BANK
DELAWARE, a Delaware banking corporation, as Issuing
Bank (as defined in Article I).
Pursuant to an Asset Purchase Agreement dated as of March 22, 1999 (the
"ACQUISITION AGREEMENT"), among the Borrower, Imperial Group Acquisition, L.P.,
a Delaware limited partnership and a wholly owned Subsidiary (such term and each
other capitalized term used but not defined herein having the meaning assigned
to it in Article I) of the Borrower ("Sub"), Imperial Group, Inc., a Tennessee
corporation ("IMPERIAL"), Fleet Design, Inc., a Tennessee corporation and a
wholly owned subsidiary of Imperial ("FLEET"), Imperial Fabricating Company of
Tennessee, Inc., a Tennessee corporation and a wholly owned subsidiary of
Imperial ("IFC" and, together with Fleet, the "SELLERS"), and the shareholders
of Imperial, Sub will acquire substantially all the assets and assume the
related liabilities of the Sellers (the "ACQUISITION"), for aggregate
consideration of $58,500,000, subject to adjustment as set forth in the
Acquisition Agreement (the "ACQUISITION CONSIDERATION").
The Borrower has requested the Lenders to extend credit in the form of
(a) Tranche A Term Loans on the Closing Date, in an aggregate principal amount
not in excess of $50,000,000, (b) Tranche B Term Loans on the Closing Date, in
an aggregate principal amount not in excess of $50,000,000, and (c) Revolving
Loans at any time and from time to time after the Closing Date and prior to the
Revolving Credit Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $75,000,000 less the sum of (i) the aggregate
principal amount of the Swingline Loans outstanding at such time and (ii) the
L/C Exposure at such time. The Borrower has requested the Swingline Lender to
extend credit, at any time and from time to time prior to the Revolving Credit
Maturity Date, in the form of Swingline Loans. The Borrower has requested the
Issuing Bank to issue letters of credit, in an aggregate face amount at any time
outstanding not in excess of $35,000,000, to support payment obligations
incurred in the ordinary course of business by the Borrower and its
Subsidiaries.
The proceeds of the Term Loans are to be used solely (a) on the Closing
Date (i) to pay the Acquisition Consideration, (ii) to refinance the principal
of, and to pay all interest and other amounts payable in respect of, the
outstanding loans under the Existing Loan Agreement, and (iii) to pay related
fees and expenses and (b) on and after the Closing Date in the ordinary course
of the Borrower's business. The proceeds of the Revolving Loans are to be used
solely for general corporate purposes in the ordinary course of the Borrower's
business, including Permitted Acquisitions.
The Lenders and the Swingline Lender are willing to extend such credit
to the Borrower and the Issuing Bank is willing to issue letters of credit for
the account of the Borrower on the terms and subject to the conditions set forth
herein.
Accordingly, the parties hereto agree as follows:
ARTICLEI
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR REVOLVING LOAN" shall mean any Revolving Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR SPREAD" shall mean (a) with respect to Tranche A Term Loans and
Revolving Loans, 1.25%, subject to adjustment in accordance with Section
2.06(c), and (b) with respect to Tranche B Term Loans, 1.75%.
"ABR TERM BORROWING" shall mean a Borrowing comprised of ABR Term Loans.
"ABR TERM LOAN" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ACCOUNT" shall mean any right to payment for goods sold or leased or
for services rendered, whether or not earned by performance.
"ACQUISITION" shall have the meaning assigned to such term in the
preliminary statement.
"ACQUISITION AGREEMENT" shall have the meaning assigned to such term in
the preliminary statement.
"ACQUISITION CONSIDERATION" shall have the meaning assigned to such term
in the preliminary statement.
"ADJUSTED LIBO RATE" shall mean, 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 the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"ADMINISTRATIVE AGENT FEES" shall have the meaning assigned to such term
in Section 2.05(b).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as shall be approved
by the Administrative Agent.
"AFFILIATE" shall mean, when used 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" shall have the meaning assigned to such term in the
preliminary statement.
"AGGREGATE REVOLVING CREDIT EXPOSURE" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate Base
Rate shall be determined without regard to clause (b) or (c), or both, of the
preceding sentence, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate, respectively. The term "PRIME RATE"
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective on the date
such change is publicly announced as being effective. The term "BASE CD RATE"
shall mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) Statutory Reserves and (b) the Assessment Rate. The term "FEDERAL FUNDS
EFFECTIVE RATE" shall mean, for any day, the weighted average 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 of the quotations for
the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"APPROVED FUND" shall mean, with respect to any Lender that is a fund or
a trust that invests in commercial loans, any other fund or trust that invests
in commercial loans and is managed or advised by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
"ASSESSMENT RATE" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor thereto) for insurance
by such corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"ASSET SALE" shall mean the sale, transfer or other disposition (by way
of merger or otherwise) by any Loan Party or any of the Subsidiaries to any
person other than any Loan Party of (a) any capital stock of any of the
Subsidiaries or (b) any other assets of the Borrower or any of the Subsidiaries
(other than inventory, obsolete or worn out assets, scrap and Permitted
Investments, in each case disposed of in the ordinary course of business) of any
Loan Party or any of the Subsidiaries, PROVIDED that any asset sale or series of
related asset sales described in clause (b) above having a value not in excess
of $100,000 shall not be deemed an "Asset Sale" for purposes of this Agreement.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"BOND DOCUMENTS" shall mean (a) the ▇▇▇▇▇▇▇ Bond Documents, (b) any loan
agreement (as may be amended, modified or supplemented from time to time)
entered into, prior to or after the Closing Date, by a state or local government
authority and the Borrower or any Guarantor relating to industrial development
or tax-free bonds (the "BONDS") to be issued by such state or local government
authority, (c) any trust indenture (as may be amended, modified or supplemented
from time to time) entered into, prior to or after the Closing Date, by a state
or local government authority and a trustee with respect to the Bonds and (d)
the other documents entered into in connection with the documents described in
clauses (b) and (c) above.
"BORROWING" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"BORROWING REQUEST" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C, or
such other form as shall be approved by the Administrative Agent.
"▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ Seating, Inc., a Delaware corporation.
"▇▇▇▇▇▇▇ BOND DOCUMENTS" shall mean the loan document, indenture and the
other documents executed in connection with the issuance of the ▇▇▇▇▇▇▇ Bonds
(as each as may be amended, modified or supplemented from time to time).
"▇▇▇▇▇▇▇ BONDS" shall mean the Variable/Fixed Rate Industrial
Development Revenue Bonds (▇▇▇▇▇▇▇ Seating, Inc. Project) Series 1999 issued by
The Industrial Development Board of the City of Piedmont in an aggregate
principal amount of $3,100,000, pursuant to the Trust Indenture dated as of
March 1, 1999 between ▇▇▇▇▇▇▇ and NBD Bank, as trustee.
"▇▇▇▇▇▇▇ PLEDGE AND SECURITY AGREEMENT" shall mean the ▇▇▇▇▇▇▇ Pledge
and Security Agreement, substantially in the form of Exhibit D, among the
Borrower, ▇▇▇▇▇▇▇, the custodian identified therein and the Collateral Agent for
the benefit of the Secured Parties.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
PROVIDED, HOWEVER, 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.
"CAPITAL LEASE OBLIGATIONS" of any person shall mean 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 for any period of determination.
"CASUALTY" shall have the meaning assigned to such term in Section
5.12(a).
A "CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all shares that any such person has
the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of more
than 35% of the Voting Stock of the Borrower;
(b) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors of
the Borrower (together with any new directors whose election by the
stockholders of the Borrower was approved by a majority of the
directors of the Borrower then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Borrower then in office; or
(c) any change in control with respect to the Borrower (or
similar event, howsoever denominated) shall occur under and as
defined in any indenture or agreement in respect of Indebtedness to
which the Borrower or any Subsidiary is a party.
"CLOSING DATE" shall mean the date of the first Credit Event.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"COMMITMENT" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Swingline Commitment.
"COMMITMENT FEE" shall have the meaning assigned to such term in Section
2.05(a).
"COMMITMENT FEE PERCENTAGE" shall mean 0.50%; PROVIDED, HOWEVER, that at
any time that the ABR Spread and the LIBOR Spread are determined by reference to
the grid contained in Section 2.06(c), the Commitment Fee Percentage shall equal
the applicable percentage set forth below the caption "Commitment Fee
Percentage" on such grid at such time.
"CONDEMNATION" shall have the meaning assigned to such term in Section
5.12(b).
"CONDEMNATION PROCEEDS" shall have the meaning assigned to such term in
Section 5.12(b).
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean the Confidential
Information Memorandum of the Borrower dated March 1999.
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean, for any period, the sum
of (a) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability) by the Borrower and its Subsidiaries
during such period that, in accordance with GAAP, are or should be included in
"additions to property, plant or equipment" or similar items reflected in the
consolidated statement of cash flows of the Borrower and its Subsidiaries for
such period, and (b) to the extent not covered by clause (a) above, the
aggregate of all expenditures by the Borrower and its Subsidiaries to acquire by
purchase or otherwise the business, property or fixed assets of, or stock or
other evidence of beneficial ownership of, any person; PROVIDED, HOWEVER, that
Consolidated Capital Expenditures shall not include (i) expenditures made to
consummate the Acquisition or any Permitted Acquisition, (ii) investments in
JAIX Leasing permitted pursuant to Section 6.04(d) or (iii) investments in
Guarantors. Notwithstanding the foregoing, for purposes of determining
compliance with Section 6.11, "Consolidated Capital Expenditures" of the
Borrower and its consolidated Subsidiaries shall be determined on a pro forma
basis (a) for each of the four fiscal quarter periods ending September 30, 1999,
December 31, 1999, and March 31, 2000, giving effect to the Transactions as if
they occurred on the first day of such period, and (b) for each period of four
consecutive fiscal quarters during which a Permitted Acquisition shall have
occurred, giving effect to such Permitted Acquisition as if it occurred on the
first day of the relevant period, and such computations shall be set forth on a
certificate as described in Section 5.04(c).
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated Net
Income for such period, PLUS, to the extent deducted in computing such
Consolidated Net Income, the sum of, without duplication, (a) income tax
expense, (b) interest expense, (c) depreciation and amortization expense and (d)
any non-cash charges or non-cash losses, MINUS, to the extent added in computing
such Consolidated Net Income, (i) any interest income and (ii) any non-cash
gains, all as determined on a consolidated basis with respect to the Borrower
and the Subsidiaries in accordance with GAAP. Notwithstanding the foregoing, for
purposes of determining compliance with Sections 6.10 and 6.11, "Consolidated
EBITDA" of the Borrower and its consolidated Subsidiaries shall be determined on
a pro forma basis (a) for each of the four fiscal quarter periods ending
September 30, 1999, December 31, 1999, and March 31, 2000, giving effect to the
Transactions as if they occurred on the first day of such period, and (b) for
each period of four consecutive fiscal quarters during which a Permitted
Acquisition shall have occurred, giving effect to such Permitted Acquisition as
if it occurred on the first day of the relevant period, and such computations
shall be set forth on a certificate as described in Section 5.04(c).
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, the gross
interest expense accrued or paid by the Borrower and the Subsidiaries during
such period, determined on a consolidated basis in accordance with GAAP. For
purposes of the foregoing, gross interest expense shall be determined exclusive
of deferred financing costs and the amortization thereof and after giving effect
to any net payments made or received by the Borrower and the Subsidiaries with
respect to Hedging Agreements. Notwithstanding the foregoing, for purposes of
determining compliance with Section 6.11, "Consolidated Interest Expense" shall
mean (a) for the four fiscal quarter period ending September 30, 1999,
Consolidated Interest Expense for the fiscal quarter ending September 30, 1999,
divided by .25, (b) for the four fiscal quarter period ending December 31, 1999,
Consolidated Interest Expense for the two fiscal quarter period ending December
31, 1999, divided by .50 and (c) for the four fiscal quarter period ending March
31, 2000, Consolidated Interest Expense for the three fiscal quarter period
ending March 31, 2000, divided by .75.
"CONSOLIDATED NET INCOME" shall mean, for any period, net income or loss
of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded (a) the income of any person in which any other person (other than the
Borrower or any of the Subsidiaries or any director holding qualifying shares in
compliance with applicable law) has a joint interest and the income of JAIX
Leasing, except to the extent of the amount of dividends or other distributions
actually paid to the Borrower or any of the Subsidiaries by such person or by
JAIX Leasing during such period, (b) the income (or loss) of any person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with
the Borrower or any of the Subsidiaries or the date that person's assets are
acquired by the Borrower or any of the Subsidiaries, (c) any after tax gains or
losses attributable to sales of assets out of the ordinary course of business
and (d) (to the extent not included in clauses (a) through (c) above) any
non-cash extraordinary gains or non-cash extraordinary losses.
"CONSOLIDATED NET WORTH" shall mean, as at any date of determination,
the consolidated stockholders' equity of the Borrower and its consolidated
Subsidiaries, as determined on a consolidated basis in accordance with GAAP;
PROVIDED, HOWEVER, that in determining Consolidated Net Worth, there shall be
excluded the effect of (a) any cash or non-cash extraordinary gains or losses
relating to the Transactions and accrued on or prior to the Closing Date, and
(b) any non-cash (but not cash) extraordinary gains or losses accrued after the
Closing Date.
"CONTROL" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "CONTROLLING" and "CONTROLLED" shall have meanings correlative
thereto.
"CREDIT EVENT" shall have the meaning assigned to such term in Section
4.01.
"DEFAULT" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARIES" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"ENVIRONMENT" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, and any other media as otherwise defined in any Environmental
Law.
"ENVIRONMENTAL CLAIM" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, consent decree, directive, cost
recovery action or other cause of action by, or on behalf of, any Governmental
Authority or any person for damages, injunctive or equitable relief, personal
injury (including sickness, disease or death), Remedial Action costs, tangible
or intangible property damage, natural resource damages, nuisance, pollution,
any adverse effect on the environment caused by any Hazardous Material, or for
fines, penalties or restrictions, in each case resulting from or based upon: (a)
the existence, or the continuation of the existence, of a Release (including
sudden or non-sudden, accidental or non-accidental Releases); (b) exposure to
any Hazardous Material; (c) the presence, use, handling, transportation,
storage, treatment or disposal of any Hazardous Material; or (d) the violation
or alleged violation of any Environmental Law or Environmental Permit.
"ENVIRONMENTAL LAW" shall mean any and all applicable present and future
treaties, statutes, common law, 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 human health or the environment, preservation or reclamation of natural
resources or the management, Release or threatened Release of any Hazardous
Material, including the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. ▇▇.▇▇. 9601 ET seq. (collectiveLY
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Amendments of 1984, 42 U.S.C.
▇▇.▇▇. 6901 ET seq., the Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. ▇▇.▇▇. 1251 ET seq., the Clean Air Act of
1970, as amended 42 U.S.C. ▇▇.▇▇. 7401 ET seq., the Toxic Substances Control Act
of 1976, 15 U.S.C. ▇▇.▇▇. 2601 ET seq., the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. ▇▇.▇▇. 11001 ET seq., the Safe Drinking
Water Act of 1974, as amended, 42 U.S.C. ▇▇.▇▇. 300(F) ET seq., the Hazardous
Materials Transportation Act, 49 U.S.C. ▇▇.▇▇. 1801 et seq., the Occupational
Safety and Health Act, 29 U.S.C. ss. 651 eT SEq., and any similar oR
implementing state or local law, and all amendments or regulations promulgated
thereunder.
"ENVIRONMENTAL PERMIT" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA AFFILIATE" shall mean 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" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (c) 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; (d) 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; (e) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (f) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (g) the receipt by 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; (h) the occurrence of a "prohibited
transaction" with respect to which the Borrower or any of its Subsidiaries is a
"disqualified person" (within the meaning of Section 4975 of the Code) or with
respect to which the Borrower or any such Subsidiary could otherwise be liable;
and (i) any other event or condition with respect to a Plan or Multiemployer
Plan that could reasonably be expected to result in liability of the Borrower.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Eurodollar
Loans.
"EURODOLLAR LOAN" shall mean any Eurodollar Revolving Loan or Eurodollar
Term Loan.
"EURODOLLAR REVOLVING LOAN" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"EURODOLLAR TERM BORROWING" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"EURODOLLAR TERM LOAN" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VII.
"EXCESS CASH FLOW" shall mean, for any fiscal year, the excess of (a)
the sum of (i) Consolidated EBITDA and (ii) extraordinary cash income, if any,
not included in Consolidated EBITDA, over (b) the sum of (i) provisions for
taxes based on income, (ii) cash interest paid during such fiscal year, (iii)
cash Consolidated Capital Expenditures made in accordance with Section 6.09
during such fiscal year, (iv) scheduled and, in the case of purchase money
Indebtedness only, mandatory principal repayments of Indebtedness made during
such fiscal year, (v) mandatory prepayments of the principal of Loans during
such period, but only to the extent that such prepayments cannot by their terms
be reborrowed or redrawn and do not occur in connection with a refinancing of
all or any portion of such Loans, (vi) extraordinary cash expenses paid, if any,
not included in Consolidated EBITDA, (vii) payments made by the Borrower
pursuant to the JAIX Tax Sharing Agreement and (viii) cash consideration paid
for Permitted Acquisitions during such fiscal year except to the extent financed
with the proceeds of Indebtedness or the issuance of securities.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXISTING LETTER OF CREDIT" shall mean each Letter of Credit listed on
Schedule 3.23.
"EXISTING LOAN AGREEMENT" shall mean the Credit Agreement dated as of
August 23, 1995, as amended, among the Borrower, the lenders named therein, The
Chase Manhattan Bank (formerly known as Chemical Bank), as administrative agent,
swingline lender, collateral Agent and as an issuing bank, Chase Manhattan Bank
Delaware (formerly known as Chemical Bank Delaware), as an issuing bank, and
BankBoston, N.A. (formerly known as The First National Bank of Boston) and The
First National Bank of Chicago, as co-agents.
"FEE LETTER" shall mean the Fee Letter dated March 22, 1999, among the
Borrower, The Chase Manhattan Bank and Chase Securities Inc.
"FEES" shall mean the Commitment Fees, the Administrative Agent's Fees,
the LC Participation Fees and the Issuing Bank Fees.
"FINANCIAL OFFICER" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body
(including the National Association of Insurance Commissioners).
"GUARANTEE" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (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; PROVIDED, HOWEVER, that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement, substantially
in the form of Exhibit E, made by the Guarantors in favor of the Collateral
Agent for the benefit of the Secured Parties.
"GUARANTORS" shall mean each person listed on Schedule 1.01(a), each
person who executes a Guarantee Agreement pursuant to Section 5.11 and the
permitted successors and assigns of each such person.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes, hazardous or toxic materials, substances or wastes, pollutants, solid,
liquid or gaseous wastes, including petroleum or petroleum distillates, asbestos
or asbestos containing materials, polychlorinated biphenyls ("PCBS") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other materials, substances or wastes of any nature regulated pursuant
to any Environmental Law.
"HEDGING AGREEMENT" shall mean any ordinary course interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, foreign
currency exchange agreement, commodity protection agreement or similar agreement
or arrangement designed to protect the Borrower or any Subsidiary against
fluctuations in interest rates, foreign currency exchange rates or commodity
prices and not for speculation.
"IMPERIAL" shall have the meaning assigned to such term in the
preliminary statement.
"IMPERIAL EARN-OUT OBLIGATION" shall mean the obligations of the
Borrower and Sub pursuant to Section 3.04(a) of the Acquisition Agreement.
"INACTIVE SUBSIDIARY" shall mean any Subsidiary of the Borrower that has
assets with a total book value not in excess of $10,000.
"INDEBTEDNESS" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits with
such person or advances to such person of any kind, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person upon which interest charges are customarily paid, (d)
all obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (e) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, (g) all Guarantees by such person of Indebtedness of others, (h)
all Capital Lease Obligations of such person, (i) all obligations of such person
in respect of Hedging Agreements and (j) all obligations of such person as an
account party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner.
"INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit F, among the Borrower, the Guarantors and the Collateral Agent.
"INSURANCE PROCEEDS" shall have the meaning assigned to such term in
Section 5.12(a).
"INTERCOMPANY INDEBTEDNESS" shall mean any Indebtedness of the Borrower
or any Subsidiary that is owing to any Loan Party.
"INTEREST PAYMENT DATE" shall mean, with respect to any 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 that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of a Eurodollar
Borrowing or conversion of a Eurodollar Borrowing to an ABR Borrowing.
"INTEREST PERIOD" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect, and (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, and (ii) the Revolving Credit
Maturity Date, Tranche A Maturity Date or Tranche B Maturity Date, as
applicable; PROVIDED, HOWEVER, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"ISSUING BANK" shall mean, as the context may require, (a) Chase
Manhattan Bank Delaware, with respect to Letters of Credit issued by it, (b) The
Chase Manhattan Bank, with respect to Letters of Credit issued by it, (c) any
other Lender that may become an Issuing Bank pursuant to Section 2.23(i) or (k),
with respect to Letters of Credit issued by such Lender, or (d) collectively,
all the foregoing.
"ISSUING BANK FEES" shall have the meaning assigned to such term in
Section 2.05(c).
"JAIX LEASING" shall mean JAIX Leasing Company, a Delaware corporation.
"JAIX LOAN AGREEMENT" shall mean the Credit Agreement dated as of June
14, 1996, among JAIX Leasing and NationsBanc Leasing Corporation of North
Carolina, as the same may be amended from time to time in accordance with the
terms thereof and hereof.
"JAIX TAX SHARING AGREEMENT" shall mean the Tax Sharing Agreement dated
as of May 12, 1995, between JAIX Leasing and the Borrower, as the same may be
amended from time to time in accordance with the terms thereof and hereof.
"L/C COMMITMENT" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C DISBURSEMENT" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C EXPOSURE" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time PLUS (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C PARTICIPATION FEE" shall have the meaning assigned to such term in
Section 2.05(c).
"LENDERS" shall mean, at any date of determination, (a) the financial
institutions listed on Schedule 2.01 (other than any such financial institution
that has ceased to be a party hereto pursuant to an Assignment and Acceptance)
and (b) any financial institution that has become a party hereto pursuant to an
Assignment and Acceptance. Unless the context clearly indicates otherwise, the
term "Lenders" shall include the Swingline Lender.
"LETTER OF CREDIT" shall mean any letter of credit issued pursuant to
Section 2.23.
"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 approximately equal to the principal amount of such Eurodollar
Borrowing 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.
"LIBOR SPREAD" shall mean (a) with respect to Tranche A Term Loans and
Revolving Loans, 2.25%, subject to adjustment in accordance with Section
2.06(c), and (b) with respect to Tranche B Term Loans, 2.75%.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on 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.
"LOAN DOCUMENTS" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreement, the Security Documents, the Indemnity, Subrogation and
Contribution Agreement and any promissory note issued pursuant to Section
2.04(e).
"LOAN PARTIES" shall mean the Borrower and the Guarantors.
"LOANS" shall mean the Revolving Loans, the Term Loans and the Swingline
Loans.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean (a) a materially adverse effect on
the business, assets, operations, properties or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, (b) material
impairment of the ability of the Borrower or any Subsidiary to perform any of
its obligations under any Loan Document to which it is a party or (c) material
impairment of the rights of or benefits available to the Lenders under any Loan
Document.
"MORTGAGED PROPERTIES" shall mean the owned real properties and
leasehold and subleasehold interests of the Loan Parties specified on Schedule
1.01(b).
"MORTGAGES" shall mean the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other security
documents delivered pursuant to clause (i) of Section 4.02(k) or pursuant to
Section 5.11, each substantially in the form of Exhibit G-1 or Exhibit G-2, as
applicable.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" shall mean (a) with respect to any Asset Sale, the
cash proceeds thereof net of (i) costs of sale (including payment of the
outstanding principal amount of, premium or penalty, if any, interest and other
amounts on any Indebtedness (other than Loans) required to be repaid under the
terms thereof as a result of such Asset Sale), (ii) taxes paid or payable in the
year such Asset Sale occurs or in the following year as a result thereof and
(iii) amounts provided as a reserve, in accordance with GAAP, against any
liabilities under any indemnification obligations associated with such Asset
Sale (PROVIDED that, to the extent and at the time any such amounts are released
from such reserve, such amounts shall constitute Net Cash Proceeds), and (b)
with respect to any issuance or other disposition of Indebtedness for borrowed
money, the cash proceeds thereof net of underwriting commissions or placement
fees and expenses directly incurred in connection therewith.
"OBLIGATIONS" shall mean all obligations defined as "Obligations" in the
Guarantee Agreement and the Security Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PERMITTED ACQUISITIONS" shall have the meaning assigned to such term in
Section 6.05(a)(v).
"PERMITTED HOLDERS" shall mean members, as of the Closing Date, of
executive management of the Borrower and their respective Affiliates.
"PERFECTION CERTIFICATE" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Security Agreement.
"PERMITTED INVESTMENTS" shall mean:
(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, or repurchase obligations in respect of
any 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 Standard &
Poor's Ratings Services or from ▇▇▇▇▇'▇ Investors Service;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within one year 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, or the domestic office of any Lender,
which commercial bank or Lender has a combined capital and surplus
and undivided profits of not less than $250,000,000 and is rated (or
the senior debt securities of the holding company of such commercial
bank or Lender are rated) A or better by Standard & Poor's Ratings
Services or A2 or better by ▇▇▇▇▇'▇ Investors Service; and
(d) other investment instruments approved in writing by the
Required Lenders and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$250,000,000.
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"PLAN" shall mean 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 307 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.
"PLEDGE AGREEMENT" shall mean the Pledge Agreement, substantially in the
form of Exhibit H, between the Borrower, the Subsidiaries party thereto and the
Collateral Agent for the benefit of the Secured Parties.
"PREPAYMENT ACCOUNT" shall have the meaning assigned to such term in
Section 2.13(h).
"PRO RATA PERCENTAGE" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"REGISTER" shall have the meaning assigned to such term in Section
9.04(d).
"REGULATION U" shall mean Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"REGULATION X" shall mean Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"RELEASE" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"REMEDIAL ACTION" means (i) "remedial action" as such term is defined in
CERCLA, 42 U.S.C. Section 9601(24), and (ii) all other actions required by any
Governmental Authority or voluntarily undertaken to: (x) clean up, remove,
treat, ▇▇▇▇▇ or in any other way address any Hazardous Material in the
environment; (y) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not migrate or endanger, or
threaten to endanger, public health, welfare or the environment; or (z) perform
studies and investigations in connection with, or as a precondition to, clause
(x) or (y) above.
"REQUIRED LENDERS" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans), L/C Exposure, Swingline Exposure, unused Revolving
Credit Commitments and unused Term Loan Commitments representing at least a
majority of the sum of all Loans outstanding (excluding Swingline Loans), L/C
Exposure, Swingline Exposure, unused Revolving Credit Commitments and unused
Term Loan Commitments at such time.
"RESPONSIBLE OFFICER" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"REVOLVING CREDIT BORROWING" shall mean a Borrowing comprised of
Revolving Loans.
"REVOLVING CREDIT COMMITMENT" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, PLUS the aggregate amount at such time of such
Lender's L/C Exposure, PLUS the aggregate amount at such time of such Lender's
Swingline Exposure.
"REVOLVING CREDIT LENDER" shall mean a Lender with a Revolving Credit
Commitment.
"REVOLVING CREDIT MATURITY DATE" shall mean April 29, 2004.
"REVOLVING LOANS" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (c) of Section 2.01. Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"SECURED PARTIES" shall have the meaning assigned to such term in the
Security Agreement.
"SECURITY AGREEMENT" shall mean the Security Agreement, substantially in
the form of Exhibit I, between the Borrower, the Subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
"SECURITY DOCUMENTS" shall mean the Mortgages, the Security Agreement,
the Pledge Agreement, the ▇▇▇▇▇▇▇ Pledge and Security Agreement and each of the
security agreements, mortgages and other instruments and documents executed and
delivered pursuant to any of the foregoing or pursuant to Section 5.11.
"SELLERS" shall have the meaning assigned to such term in the
preliminary statement.
"STATUTORY RESERVES" shall mean 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 and any other banking authority, domestic or foreign,
to which the Administrative Agent is subject (a) with respect to the Base CD
Rate, for new negotiable nonpersonal time deposits in dollars of over $100,000
with maturities approximately equal to three months, and (b) 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 or any
successor regulation or law. 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 the Administrative Agent under such Regulation D or any
comparable regulation. Statutory Reserves shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage. "SUB" shall
have the meaning assigned to such term in the preliminary statement.
"SUBORDINATED DEBT DOCUMENTS" shall mean the indentures under which the
Subordinated Notes were issued and all other instruments, agreements and other
documents evidencing or governing the Subordinated Notes or providing for any
Guarantee or other right in respect thereof.
"SUBORDINATED NOTES" shall mean the 11-3/4% Senior Subordinated Notes
due 2005 of the Borrower issued on August 23, 1995, in an aggregate principal
amount of $100,000,000, and issued on August 12, 1997, in an aggregate principal
amount of $80,000,000.
"SUBSIDIARY" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, owned, controlled or held by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" shall mean any subsidiary of the Borrower.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline Lender
to make loans pursuant to Section 2.22, as the same may be reduced from time to
time pursuant to Section 2.09.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"SWINGLINE LOAN" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
"TERM BORROWING" shall mean a Borrowing comprised of Tranche A Term
Loans or Tranche B Term Loans.
"TERM LOAN COMMITMENTS" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"TERM LOAN REPAYMENT DATES" shall mean the Tranche A Term Loan Repayment
Dates and the Tranche B Term Loan Repayment Dates.
"TERM LOANS" shall mean Tranche A Term Loans and Tranche B Term Loans.
"THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"TOTAL DEBT" shall mean, at any time, all Indebtedness, other than (a)
Indebtedness of the type referred to in clause (i) of the definition of the term
"Indebtedness", (b) Indebtedness in respect of any Letter of Credit, except to
the extent of any unreimbursed drawings thereunder, (c) Guarantees with respect
to surety bonds incurred in the ordinary course of business and (d) Indebtedness
of the type referred to in clause (f) or (g) or in the final sentence of the
definition of the term "Indebtedness", to the extent that the Indebtedness of
the other person referred to in such clause (f) or (g) or the partnership
referred to in such final sentence is Indebtedness of the type referred to in
the preceding clause (a), (b) or (c).
"TOTAL DEBT RATIO" shall mean the ratio of (i) Total Debt as of any date
of determination to (ii) Consolidated EBITDA for the four fiscal quarter period
ending on such date of determination.
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"TRANCHE A COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Tranche A Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04.
"TRANCHE A LENDERS" shall mean Lenders having outstanding Tranche A Term
Loans.
"TRANCHE A MATURITY DATE" shall mean April 29, 2004.
"TRANCHE A TERM BORROWING" shall mean a Borrowing comprised of Tranche A
Term Loans.
"TRANCHE A TERM LOAN REPAYMENT DATE" shall have the meaning set forth in
Section 2.11(a)(i).
"TRANCHE A TERM LOANS" shall mean the terms loans made by the Lenders to
the Borrower pursuant to clause (a) of Section 2.01. Each Tranche A Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"TRANCHE B COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans hereunder as set forth in
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Tranche B Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04.
"TRANCHE B LENDERS" shall mean Lenders having outstanding Tranche B Term
Loans.
"TRANCHE B MATURITY DATE" shall mean April 29, 2005.
"TRANCHE B TERM BORROWING" shall mean a Borrowing comprised of Tranche B
Term Loans.
"TRANCHE B TERM LOAN REPAYMENT DATE" shall have the meaning set forth in
Section 2.11(a)(ii).
"TRANCHE B TERM LOANS" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (b) of Section 2.01. Each Tranche B Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"TRANSACTIONS" shall have the meaning assigned to such term in Section
3.02.
"TYPE", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "RATE" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"VOTING STOCK" of a corporation shall mean all classes of capital stock
of such corporation then-outstanding and normally entitled to vote in the
election of directors.
"WHOLLY OWNED SUBSIDIARY" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"WITHDRAWAL LIABILITY" shall mean 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. Terms Generally . The definitions in Section 1.01 shall
apply equally to both 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".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; PROVIDED, HOWEVER, that for purposes of determining compliance
with the covenants contained in Article VI, all accounting terms herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP as in effect on the date of this Agreement and applied on a
basis consistent with the application used in the financial statements referred
to in Section 3.05(a). Notwithstanding the foregoing, other than for purposes of
the financial statements referred to in Sections 5.04(a) and (b) and except as
expressly set forth in clause (a) of the definition of Consolidated Net Income
and in clause (b) of the definition of Consolidated Capital Expenditures, in all
computations of Capital Expenditures, Consolidated EBITDA, Consolidated Interest
Expense, Consolidated Net Worth, Total Debt and all other "consolidated"
amounts, the assets, charges, expenses, income, indebtedness, liabilities,
losses, obligations, net worth, and all other relevant amounts concerning JAIX
Leasing shall not be consolidated, but shall instead be excluded.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Tranche A Term Loan to the
Borrower on the Closing Date in a principal amount not to exceed its Tranche A
Commitment, (b) to make a Tranche B Term Loan to the Borrower on the Closing
Date in a principal amount not to exceed its Tranche B Commitment, and (c) to
make Revolving Loans to the Borrower, at any time and from time to time after
the Closing Date, and until the earlier of the Revolving Credit Maturity Date
and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Credit Commitment. Within the limits set forth
in clause (c) of the preceding sentence and subject to the terms, conditions and
limitations set forth herein, the Borrower may borrow, pay or prepay and
reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans may
not be reborrowed.
SECTION 2.02. Loans . (a) Each Loan (other than Swingline Loans) shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their respective Tranche A Commitments, Tranche B Commitments
or Revolving Credit Commitments, as the case may be; PROVIDED, HOWEVER, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 and
not less than $5,000,000 or (ii) equal to the remaining available balance of the
applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; PROVIDED, HOWEVER, 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. Borrowings of more than one Type may be outstanding at the same
time; PROVIDED, HOWEVER, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than 10 Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in New York City as the Administrative Agent may designate not later
than 12:00 (noon)., New York City time, and the Administrative Agent shall by
1:00 p.m., New York City time, credit the amounts so received to an account with
the Administrative Agent designated by the Borrower in the applicable Borrowing
Request, which account must be in the name of the Borrower or, if a Borrowing
shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective
Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
and not jointly agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until (but not including) the
date such amount is repaid to the Administrative Agent at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) 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. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing, Tranche A Term
Borrowing or Tranche B Term Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Credit Maturity Date, the Tranche
A Maturity Date or the Tranche B Maturity Date, respectively.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.23(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 3:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 1:00 p.m., New York City time, on any day, not later than
10:00 a.m., New York City time, on the immediately following Business Day), an
amount equal to such Lender's Pro Rata Percentage of such L/C Disbursement (it
being understood that such amount shall be deemed to constitute an ABR Revolving
Loan of such Lender and such payment shall be deemed to have reduced the L/C
Exposure by the amount of such payment), and the Administrative Agent will
promptly pay to the Issuing Bank amounts so received by it from the Revolving
Credit Lenders. The Administrative Agent will promptly pay to the Issuing Bank
any amounts received by it from the Borrower pursuant to Section 2.23(e) prior
to the time that any Revolving Credit Lender makes any payment pursuant to this
paragraph (f); any such amounts received by the Administrative Agent thereafter
will be promptly remitted by the Administrative Agent to the Revolving Credit
Lenders that shall have made such payments and to the Issuing Bank, as their
interests may appear. If any Revolving Credit Lender shall not have made its Pro
Rata Percentage of such L/C Disbursement available to the Administrative Agent
as provided above, such Lender and the Borrower severally and not jointly agree
to pay interest on such amount, for each day from and including the date such
amount is required to be paid in accordance with this paragraph to but excluding
the date such amount is paid, to the Administrative Agent at (i) in the case of
the Borrower, a rate per annum equal to the interest rate applicable to
Revolving Loans pursuant to Section 2.06, and (ii) 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.
SECTION2.03. Borrowing Procedure. In order to request a Borrowing (other
than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to
which this Section 2.03 shall not apply), the Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed Borrowing Request (or make
such request telephonically, promptly confirmed in writing or by telecopy) (a)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before a proposed Borrowing, and (b) in the case of an
ABR Borrowing, not later than 12:00 noon, New York City time, one Business Day
before a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall
be signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term
Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day), (iii) the number and location of the account to which
funds are to be disbursed (which shall be an account that complies with the
requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if
such Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto; PROVIDED, HOWEVER, that, notwithstanding any contrary specification in
any Borrowing Request, each requested Borrowing shall comply with the
requirements therefor set forth in Section 2.02. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the applicable Lenders of any notice given pursuant
to this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repaymentof Loans . (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each applicable Lender (i) the then unpaid principal amount of each
Term Loan as provided in Section 2.11, (ii) the then unpaid principal amount of
each Revolving Loan on the Revolving Credit Maturity Date and (iii) the then
unpaid principal amount of each Swingline Loan on the Revolving Credit Maturity
Date.
(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 from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the 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 from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall, absent manifest error, be prima facie evidence of the
existence and amounts of the obligations therein recorded; PROVIDED, HOWEVER,
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 obligations of
the Borrower to repay the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees . (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last day of March, June, September and
December in each year and on each date on which any Commitment of such Lender
shall expire or be terminated as provided herein, a commitment fee (a
"COMMITMENT FEE") equal to the Commitment Fee Percentage per annum in effect
from time to time on the average daily unused amount (treating L/C Exposure as
usage of the Revolving Credit Commitments) of the Commitments of such Lender
(other than the Swingline Commitment) during the preceding quarter (or other
period commencing with the date hereof or ending with the date on which any of
such Commitments of such Lender shall expire or be terminated). All Commitment
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days. The Commitment Fee due to each Lender shall commence to accrue
on the date hereof and shall cease to accrue on the date on which such
Commitment of such Lender shall expire or be terminated as provided herein. For
purposes of calculating Commitment Fees only, no portion of the Revolving Credit
Commitments shall be deemed utilized under Section 2.17 as a result of
outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "ADMINISTRATIVE AGENT FEES").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last day of March, June, September and
December of each year and on the date on which the Revolving Credit Commitment
of such Lender shall be terminated as provided herein, a fee (an "L/C
PARTICIPATION FEE") calculated on such Lender's Pro Rata Percentage of the
average daily aggregate L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements) during the preceding quarter (or shorter
period commencing with the date hereof or ending with the Revolving Credit
Maturity Date or the date on which all Letters of Credit have been canceled or
have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the LIBOR Spread from time to time used
to determine the interest rate on Revolving Credit Borrowings comprised of
Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing Bank with
respect to each Letter of Credit the fronting fees set forth in the Fee Letter
plus, in connection with the issuance, amendment or transfer of any Letter of
Credit or any L/C Disbursement, the Issuing Bank's customary documentary and
processing charges (collectively, the "ISSUING BANK FEES"). All L/C
Participation Fees and Issuing Bank Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. All Fees shall be billed to the Borrower in advance of the due
dates thereof and, once paid, none of the Fees shall be refundable under any
circumstances except for manifest error in the calculation thereof.
SECTION 2.06. Interest on Loans . (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing, including each Swingline
Loan, shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when the Alternate
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times) at a rate per annum equal to the Alternate Base Rate
plus the ABR Spread in effect at such time with respect to such Loans.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
LIBOR Spread in effect at such time with respect to such Loans.
(c) So long as no Event of Default shall have occurred and be
continuing, on each occasion that, as of the last day of any fiscal quarter
ending on or after June 30, 1999, the Total Debt Ratio shall fall within one of
the Categories set forth in the table below, the ABR Spread and the LIBOR Spread
in respect of Tranche A Term Loans and Revolving Loans and the Commitment Fee
Percentage shall be automatically changed, if necessary, to reflect the
percentages indicated for such Category on the table below, with any such change
to be effective on and after the date of delivery to the Administrative Agent of
the financial statements and certificate described in Section 5.04(a) or (b), as
applicable, and Section 5.04(c), respectively, relating to such fiscal quarter.
===================================== ------------------ ---------------- =================
CATEGORY ABR SPREAD LIBOR COMMITMENT FEE
SPREAD PERCENTAGE
===================================== ------------------ ---------------- =================
CATEGORY 1 1.50% 2.50% 0.50%
Equal to or greater than 3:00 to
1:00
===================================== ------------------ ---------------- =================
CATEGORY 2 1.25% 2.25% 0.50%
Equal to or greater than 2.50 to
1.00 but less than 3.00 to 1.00
===================================== ------------------ ---------------- =================
CATEGORY 3 1.00% 2.00% 0.50%
Equal to or greater than 2.25 to
1.00 but less than 2.50 to 1.00
===================================== ------------------ ---------------- =================
CATEGORY 4 0.75% 1.75% 0.50%
Equal to or greater than 2.00 to
1.00
but less than 2.25 to 1.00
===================================== ================== ================ =================
CATEGORY 5 0.50% 1.50% 0.375%
Less than 2.00 to 1.00
===================================== ================== ================ =================
In the event that any condition that gives rise to any change in a Category
pursuant to the first sentence of this Section 2.06(c) is no longer satisfied as
of the end of any subsequent fiscal quarter, on and after the date of delivery
to the Administrative Agent of the certificate described in Section 5.04(c)
relating to such subsequent fiscal quarter, the ABR Spread, the LIBOR Spread and
the Commitment Fee Percentage shall be automatically changed to reflect the
Category indicated by such certificate. Notwithstanding the foregoing, at any
time during which the Borrower has failed to deliver the certificate described
in Section 5.04(c) with respect to a fiscal quarter in accordance with the
provisions thereof, or at any time that an Event of Default shall have occurred
and shall be continuing, the ABR Spread, the LIBOR Spread and the Commitment Fee
Percentage shall be determined by reference to the definition of such terms,
without any adjustment pursuant to this Section, until such time as the Borrower
shall deliver such certificate in accordance with the provisions of Section
5.04(c) or such Event of Default shall be cured or waived.
(d) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest . If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the sum of the Alternate Base Rate plus
2.00%.
SECTION 2.08. Alternate Rate of Interest . In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent reasonably
shall have determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or telecopy notice
of such determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments . (a) The Term
Loan Commitments shall automatically terminate at 5:00 p.m., New York City time,
on the Closing Date. The Revolving Credit Commitments, the Swingline Commitment
and the L/C Commitment shall automatically terminate on the Revolving Credit
Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., New York City time, on May 15, 1999, if
the initial Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Term Loan Commitments or the Revolving Credit Commitments; PROVIDED,
HOWEVER, that (i) each partial reduction of the Term Loan Commitments or the
Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $5,000,000 or, if lesser, the then-outstanding Revolving
Credit Commitments and (ii) the Total Revolving Credit Commitment shall not be
reduced to an amount that is less than the sum of the Aggregate Revolving Credit
Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings . The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 11:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 11:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among
the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections
2.02(a) and 2.02(b) regarding the principal amount and maximum
number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender
the new Loan of such Lender resulting from such conversion and
reducing the Loan (or portion thereof) of such Lender being
converted by an equivalent principal amount; accrued interest on
any Eurodollar Loan (or portion thereof) being converted shall be
paid by the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant
to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a
Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Borrowing into
an ABR Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Term Loan Repayment Date
occurring on or after the first day of such Interest Period if,
after giving effect to such selection, the aggregate outstanding
amount of (A) the Eurodollar Term Borrowings with Interest
Periods ending on or prior to such Term Loan Repayment Date and
(B) the ABR Term Borrowings would not be at least equal to the
principal amount of Term Borrowings to be paid on such Term Loan
Repayment Date; and
(vii) upon notice to the Borrower from the Administrative Agent on
behalf of the Required Lenders after the occurrence and during
the continuance of a Default or Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR
Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings . (a) (i) The Borrower shall
pay to the Administrative Agent, for the account of the Tranche A Lenders, on
the dates set forth below or, if any such date is not a Business Day, on the
next succeeding Business Day (each such date being a "TRANCHE A TERM LOAN
REPAYMENT DATE"), a principal amount of the Tranche A Term Loans equal to the
amount set forth below for such date (subject to adjustment from time to time
pursuant to Sections 2.11(b), 2.12 and 2.13(g)), together in each case with
accrued and unpaid interest on the principal amount to be paid to but excluding
the date of such payment:
DATE AMOUNT
September 30, 1999 2,000,000
December 31, 1999 2,000,000
March 31, 2000 2,000,000
June 30, 2000 2,000,000
September 30, 2000 2,000,000
December 31, 2000 2,000,000
March 31, 2001 2,000,000
June 30, 2001 2,000,000
September 30, 2001 2,500,000
December 31, 2001 2,500,000
March 31, 2002 2,500,000
June 30, 2002 2,500,000
September 30, 2002 2,500,000
December 31, 2002 2,500,000
March 31, 2003 2,500,000
June 30, 2003 2,500,000
September 30, 2003 3,500,000
December 31, 2003 3,500,000
March 31, 2004 3,500,000
Tranche A Maturity Date 3,500,000
(ii) The Borrower shall pay to the Administrative Agent, for the account
of the Tranche B Lenders, on the dates set forth below or, if any such date is
not a Business Day, on the next succeeding Business Day (each such date being a
"TRANCHE B TERM LOAN REPAYMENT DATE"), a principal amount of the Tranche B Term
Loans equal to the amount set forth below for such date (subject to adjustment
from time to time pursuant to Sections 2.11(b), 2.12 and 2.13(g)), together in
each case with accrued and unpaid interest on the principal amount to be paid to
but excluding the date of such payment:
DATE AMOUNT
September 30, 1999 125,000
December 31, 1999 125,000
March 31, 2000 125,000
June 30, 2000 125,000
September 30, 2000 125,000
December 31, 2000 125,000
March 31, 2001 125,000
June 30, 2001 125,000
September 30, 2001 125,000
December 31, 2001 125,000
March 31, 2002 125,000
June 30, 2002 125,000
September 30, 2002 125,000
December 31, 2002 125,000
March 31, 2003 125,000
June 30, 2003 125,000
September 30, 2003 125,000
December 31, 2003 125,000
March 31, 2004 125,000
June 30, 2004 125,000
September 30, 2004 5,000,000
December 31, 2004 5,000,000
March 31, 2005 5,000,000
Tranche B Maturity Date 32,500,000
(b) In the event and on each occasion that any Term Loan Commitments
shall be reduced or shall expire or terminate other than as a result of the
making of any Term Loans, the installments of principal due in respect of such
Term Loans on each Term Loan Repayment Date shall be reduced pro rata by an
aggregate amount equal to the amount of such reduction, expiration or
termination.
(c) To the extent not previously paid, all Tranche A Term Loans and
Tranche B Term Loans shall be due and payable on the Tranche A Maturity Date and
the Tranche B Maturity Date, respectively, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the right
at any time and from time to time to prepay any Borrowing, in whole or in part,
upon written or telecopy notice (or telephonic notice promptly confirmed by
written or telecopy notice) delivered to the Administrative Agent before 11:00
a.m., New York City time, (i) at least three Business Days prior to the date
designated for such prepayment in the case of any prepayment of a Eurodollar
Borrowing or (ii) at least one Business Day prior to the date designated for
such prepayment in the case of any prepayment of an ABR Borrowing; PROVIDED,
HOWEVER, that each partial prepayment shall be in an amount that is an integral
multiple of $1,000,000 and not less than $5,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata
between the then-outstanding Tranche A Term Loans and Tranche B Term Loans and,
at the option of the Borrower, (i) applied pro rata against the remaining
scheduled installments of principal due in respect of the Tranche A Term Loans
and Tranche B Term Loans under Sections 2.11(a)(i) and (ii), respectively, or
(ii) FIRST, applied against the scheduled installments of principal, if any, of
Tranche A Term Loans and Tranche B Term Loans due on any Term Loan Repayment
Date occurring within six months of the date of such prepayment and SECOND,
applied pro rata against the remaining scheduled installments of principal due
in respect of the Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a)(i) and (ii), respectively.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments of Eurodollar Borrowings under this Section 2.12 shall be
accompanied by accrued interest on the principal amount being prepaid to the
date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination
of all the Revolving Credit Commitments, the Borrower shall repay or prepay all
its outstanding Revolving Credit Borrowings and all outstanding Swingline Loans
on the date of such termination. In the event of any partial reduction of the
Revolving Credit Commitments, then (i) at or prior to the effective date of such
reduction or termination, the Administrative Agent shall notify the Borrower and
the Revolving Credit Lenders of the Aggregate Revolving Credit Exposure after
giving effect thereto and (ii) if the Aggregate Revolving Credit Exposure would
exceed the Total Revolving Credit Commitment after giving effect to such
reduction or termination, then the Borrower shall, on the date of such reduction
or termination, repay or prepay Revolving Credit Borrowings or Swingline Loans
(or a combination thereof) in an amount sufficient to eliminate such excess.
(b) Not later than the fifth Business Day following the completion of
any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received
with respect thereto to prepay outstanding Term Loans in accordance with
Sections 2.13(f) and (h); PROVIDED, however, that the Borrower shall not be
required to comply with this Section 2.13(b) until such time as the Net Cash
Proceeds from all Asset Sales received and not otherwise applied to prepay Term
Loans in accordance with this Section 2.13(b) exceeds $2,500,000 (and at such
time the Borrower shall so apply all such Net Cash Proceeds and, after each such
application, shall not be required to comply with the provisions of this
paragraph (b) until such time as such received but unapplied Net Cash Proceeds
again exceeds $2,500,000).
(c) Not later than the earlier of (i) 100 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on December
31, 2000, and (ii) ten days after the date on which the financial statements
with respect to such period are delivered pursuant to Section 5.04(a), the
Borrower shall prepay outstanding Term Loans in accordance with Sections 2.13(f)
and (h) in an aggregate principal amount equal to (A) 25% of Excess Cash Flow
for the fiscal year then ended if the Total Debt Ratio at the end of such fiscal
year was equal to or less than 2:00 to 1:00, (B) 50% of Excess Cash Flow for the
fiscal year then ended if the Total Debt Ratio at the end of such fiscal year
was greater than 2:00 to 1:00 but equal to or less than 3:00 to 1:00 and (C) 75%
of Excess Cash Flow for the fiscal year then ended if the Total Debt Ratio at
the end of such fiscal year was greater than 3:00 to 1:00; PROVIDED, HOWEVER,
that the amount required to be prepaid pursuant to clause (A), (B) or (C) will
be reduced by the amount of any optional prepayments of the principal of Loans
made during the fiscal year then ended, but only to the extent that such
prepayments cannot by their terms be reborrowed or redrawn and do not occur in
connection with a refinancing of all or any portion of such Loans.
(d) In the event that any Loan Party or any subsidiary of any Loan Party
shall receive Net Cash Proceeds from the issuance or other disposition of
Indebtedness for borrowed money of any Loan Party or any subsidiary of any Loan
Party (other than Indebtedness for borrowed money permitted pursuant to Section
6.01), the Borrower shall, substantially simultaneously with (and in any event
not later than the third Business Day next following) the receipt of such Net
Cash Proceeds by such Loan Party or subsidiary, apply an amount equal to 100% of
such Net Cash Proceeds to prepay outstanding Term Loans in accordance with
Sections 2.13(f) and (h).
(e) In the event that there shall occur any Casualty or Condemnation
and, pursuant to Section 5.12, the Insurance Proceeds or Condemnation Proceeds,
as the case may be, are required to be used to prepay the Term Loans, then the
Borrower shall apply an amount equal to 100% of such Insurance Proceeds or
Condemnation Proceeds (in each case, net of taxes and other obligations required
to be paid out of such proceeds in accordance with the terms of the agreements
governing such obligations and this Agreement and the other Loan Documents), as
the case may be, to prepay outstanding Term Loans in accordance with Sections
2.13(f) and (h).
(f) Mandatory prepayments of outstanding obligations under this
Agreement pursuant to paragraphs (b) through (e) above shall, be allocated pro
rata between the then-outstanding Tranche A Term Loans and Tranche B Term Loans,
and at the option of the Borrower, (i) applied pro rata against the remaining
scheduled installments of principal due in respect of Tranche A Term Loans and
Tranche B Term Loans under Sections 2.11(a)(i) and (ii), respectively, or (ii)
FIRST, applied against the scheduled installments of principal, if any, of
Tranche A Term Loans and Tranche B Term Loans due on any Term Loan Repayment
Date occurring within six months of the date of such prepayment and SECOND,
applied pro rata against the remaining scheduled installments of principal due
in respect of Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a)(i) and (ii), respectively.
(g) The Borrower shall deliver to the Administrative Agent, (i) at the
time of each prepayment required under paragraphs (b) through (e) above, a
certificate signed by a Financial Officer of the Borrower setting forth in
reasonable detail the calculation of the amount of such prepayment and (ii) to
the extent reasonably practicable, at least three Business Days prior to the
time of each prepayment required under this Section 2.13, a notice of such
prepayment. Each notice of prepayment shall specify the prepayment date, the
Type of each Loan being prepaid and the principal amount of each Loan (or
portion thereof) to be prepaid. All prepayments of Borrowings under this Section
2.13 shall be subject to Section 2.16, but shall otherwise be without premium or
penalty.
(h) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding ABR Loans. Any amounts remaining after each such
application shall, at the option of the Borrower, be applied to prepay
Eurodollar Loans immediately and/or shall be deposited in the Prepayment Account
(as defined below) for deferred application to Eurodollar Loans or other
Obligations as described below. The Administrative Agent shall apply any cash
deposited in the Prepayment Account to prepay Eurodollar Loans on the last day
of their respective Interest Periods (or, at the direction of the Borrower, on
any earlier date, subject to Section 2.16) until all outstanding Term Loans or
Revolving Loans, as the case may be, have been prepaid or until all the
allocable cash on deposit with respect to such Loans has been exhausted. For
purposes of this Agreement, the term "PREPAYMENT ACCOUNT" shall mean an account
established by the Borrower with the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph
(h). The Administrative Agent will, at the request of the Borrower, invest
amounts on deposit in the Prepayment Account in Permitted Investments that
mature prior to the last day of the applicable Interest Periods of the
Eurodollar Borrowings to be prepaid; PROVIDED, HOWEVER, that (i) the
Administrative Agent shall not be required to make any investment that, in its
sole judgment, would require or cause the Administrative Agent to be in, or
would result in any, violation of any law, statute, rule or regulation and (ii)
the Administrative Agent shall have no obligation to invest amounts on deposit
in the Prepayment Account in any investments other than overnight Permitted
Investments if a Default or Event of Default shall have occurred and be
continuing. The Borrower shall indemnify the Administrative Agent for any losses
relating to such investments so that the amount available to prepay Eurodollar
Borrowings on the last day of the applicable Interest Period is not less than
the amount that would have been available had such investments not been made
pursuant to this paragraph (h). Other than any interest earned on such
investments, the Prepayment Account shall not bear interest. Interest or
profits, if any, on such investments shall be deposited in the Prepayment
Account and reinvested and disbursed as specified above. If the maturity of the
Loans has been accelerated pursuant to Article VIII, the Administrative Agent
may, in its sole discretion, apply in accordance with the terms hereof and the
other Loan Documents all amounts on deposit in the Prepayment Account to satisfy
any of the Obligations. The Borrower hereby grants to the Administrative Agent,
for its benefit and the benefit of the Issuing Bank, the Swingline Lender and
the Lenders, a security interest in the Prepayment Account to secure the
Obligations.
SECTION 2.14. Reserve Requirements; Change in Circumstances . (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Loan made by such Lender
or any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Lender or the Issuing Bank by
the jurisdiction in which such Lender or the Issuing Bank is organized, has its
applicable lending office or has its principal office or by any political
subdivision thereof or taxing authority therein), or shall 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
or the Issuing Bank (except any such reserve requirement or assessment which is
reflected in the Adjusted LIBO Rate or the Alternate Base Rate) or shall impose
on such Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or
any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or the Issuing Bank of
making or maintaining any Eurodollar Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining a
participation therein or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount reasonably deemed by such Lender or the Issuing Bank to
be material, then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, within 10 days of demand by such Lender or the Issuing Bank,
such additional amount or amounts as will compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive issued, changed or
interpreted after the date hereof regarding capital adequacy (whether or not
having the force of law) of any Governmental Authority has or would have the
effect of reducing the rate of return on such Lender's or the Issuing Bank's
capital or on the capital of such Lender's or the Issuing Bank's holding
company, if any, as a consequence of this Agreement or the Loans made or
participations in Letters of Credit purchased by such Lender pursuant hereto or
the Letters of Credit issued by the Issuing Bank pursuant hereto to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such applicability, adoption,
change or compliance (taking into consideration such Lender's or the Issuing
Bank's policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy) by an amount reasonably deemed by such
Lender or the Issuing Bank to be material, then from time to time, within 10
days of demand by such Lender or the Issuing Bank, the Borrower shall pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above, and
setting forth in reasonable detail the basis and computation of the amount
claimed, shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank the
amount shown as due on any such certificate delivered by it within 10 days after
its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital determined in accordance with the
terms hereof shall not constitute a waiver of such Lender's or the Issuing
Bank's right to demand such compensation, except that no Lender or the Issuing
Bank shall be entitled to compensation under this Section 2.14 for any costs
incurred or reduction suffered with respect to any date unless such Lender or
the Issuing Bank, as applicable, shall have notified the Borrower that it will
demand compensation for such costs or reductions under paragraph (c) above, not
more than six months after the later of (i) such date and (ii) the date on which
such Lender or the Issuing Bank, as applicable, shall have become aware of such
costs or reductions. The protection of this Section shall be available to each
Lender and the Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, agreement, guideline
or other change or condition that shall have occurred or been imposed.
SECTION 2.15. Change in Legality . (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by
such Lender hereunder (or be continued for additional Interest
Periods and ABR Loans will not thereafter (for such duration) be
converted into Eurodollar Loans), whereupon any request for a
Eurodollar Borrowing (or to convert an ABR Borrowing to a
Eurodollar Borrowing or to continue a Eurodollar Borrowing, for
an additional Interest Period) shall, as to such Lender only, be
deemed a request for an ABR Loan (or a request to continue an ABR
Loan as such for an additional Interest Period or to convert a
Eurodollar Loan into an ABR Loan, as the case may be), unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as
of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity . The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case other than
on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the Borrower hereunder (any
of the events referred to in this clause (a) being called a "BREAKAGE EVENT") or
(b) any default in the making of any payment or prepayment of a Eurodollar Loan
on the date required to be made hereunder. In the case of any Breakage Event,
such loss shall include an amount equal to the excess, as reasonably determined
by such Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that
is the subject of such Breakage Event for the period from the date of such
Breakage Event to the last day of the Interest Period in effect (or that would
have been in effect) for such Loan over (ii) the amount of interest reasonably
likely to be realized by such Lender in redeploying the funds released or not
utilized by reason of such Breakage Event for such period. A certificate of any
Lender setting forth in reasonable detail any amount or amounts which such
Lender is entitled to receive pursuant to this Section 2.16 and the basis and
computation thereof shall be delivered to the Borrower and shall be conclusive
absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Section 2.15,
each Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Commitment Fees, each
reduction of the Term Loan Commitments or the Revolving Credit Commitments and
each refinancing of any Borrowing with, conversion of any Borrowing to or
continuation of any Borrowing as a Borrowing of any Type shall be allocated pro
rata among the Lenders in accordance with their respective applicable
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Loans).
For purposes of determining the available Revolving Credit Commitments of the
Lenders at any time, each outstanding Swingline Loan shall be deemed to have
utilized the Revolving Credit Commitments of the Lenders (including those
Lenders which shall not have made Swingline Loans) pro rata in accordance with
such respective Revolving Credit Commitments. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs . Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans or L/C
Disbursement as a result of which the unpaid principal portion of its Tranche A
Term Loans, Tranche B Term Loans and Revolving Loans and participations in L/C
Disbursements shall be proportionately less than the unpaid principal portion of
the Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and L/C Exposure,
as the case may be of such other Lender, so that the aggregate unpaid principal
amount of the Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and
L/C Exposure and participations in Tranche A Term Loans, Tranche B Term Loans
and Revolving Loans and L/C Exposure held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans and L/C Exposure then-outstanding as
the principal amount of its Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans and L/C Exposure prior to such exercise of banker's lien, setoff
or counterclaim or other event was to the principal amount of all Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans and L/C Exposure outstanding
prior to such exercise of banker's lien, setoff or counterclaim or other event;
PROVIDED, HOWEVER, that if any such purchase or purchases or adjustments shall
be made pursuant to this Section and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Term Loan or Revolving Loan or L/C Disbursement deemed to have been so purchased
may exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower in
the amount of such participation.
SECTION 2.19. Payments . (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 12:00 (noon), New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing
Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid
directly to the Swingline Lender except as otherwise provided in Section
2.21(e)) shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by the Borrower hereunder
and under any other Loan Document shall be made, in accordance with Section
2.19, free and clear of and without deduction for any and all current or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, EXCLUDING (i) income taxes imposed on the net income of
the Administrative Agent, any Lender or the Issuing Bank (or any transferee or
assignee thereof, including a participation holder (any such entity a
"TRANSFEREE")) and (ii) franchise taxes imposed on the net income or capital of
the Administrative Agent, any Lender or the Issuing Bank (or Transferee), in
each case by the jurisdiction under the laws of which the Administrative Agent,
such Lender or the Issuing Bank (or Transferee) is organized, has its principal
place of business or has its applicable lending office or any political
subdivision thereof or taxing authority therein (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities, collectively
or individually, being called "TAXES"). If the Borrower shall be required to
deduct any Taxes from or in respect of any sum payable hereunder or under any
other Loan Document to the Administrative Agent, any Lender or the Issuing Bank
(or any Transferee), (i) the sum payable shall be increased by the amount (an
"ADDITIONAL AMOUNT") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) the Administrative Agent, such Lender or the Issuing Bank (or Transferee),
as the case may be, shall receive 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) In addition, the Borrower agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (including, without limitation, mortgage recording taxes and similar
fees) that arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document ("OTHER TAXES").
(c) The Borrower will indemnify the Administrative Agent, each Lender
and the Issuing Bank (or Transferee) for the full amount of Taxes and Other
Taxes paid by the Administrative Agent, such Lender or the Issuing Bank (or
Transferee), as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental Authority
(it being understood that such indemnification shall not impair any right that
the Borrower may have to contest with the relevant Governmental Authority such
Taxes or Other Taxes). A certificate as to the amount of such payment or
liability prepared by the Administrative Agent, a Lender or the Issuing Bank (or
Transferee), or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes. Such indemnification
shall be made within 30 days after the date the Administrative Agent, any Lender
or the Issuing Bank (or Transferee), as the case may be, makes written demand
therefor, accompanied by a copy of any written notice or demand by the relevant
Governmental Authority.
(d) If the Administrative Agent, a Lender or the Issuing Bank (or
Transferee) receives a refund in respect of any Taxes or Other Taxes as to which
it has been indemnified by the Borrower or with respect to which the Borrower
has paid additional amounts pursuant to this Section 2.20, it shall within 30
days from the date of such receipt pay over such refund to the Borrower (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section 2.20 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all reasonable out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Bank (or Transferee) and
without interest (other than interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED, HOWEVER, that the Borrower,
upon the request of the Administrative Agent, such Lender or the Issuing Bank
(or Transferee), shall repay the amount paid over to the Borrower (plus
penalties, interest or other charges) to the Administrative Agent, such Lender
or the Issuing Bank (or Transferee) in the event the Administrative Agent, such
Lender or the Issuing Bank (or Transferee) is required to repay such refund to
such Governmental Authority.
(e) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrower to the relevant Governmental Authority, the Borrower
will deliver to the Administrative Agent, at its address referred to in Section
9.01, the original or a certified copy of a receipt issued by such Governmental
Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.20 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder, the expiration or cancelation of all Letters of Credit and the
reimbursement of all draws thereunder.
(g) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "NON-U.S. LENDER") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Borrower under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "NEW LENDING OFFICE"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.20(g), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.20(g) that
such Non-U.S. Lender is not legally able to deliver.
(h) The Borrower shall not be required to indemnify any Non-U.S. Lender
or to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Lender became a party
to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; PROVIDED, HOWEVER,
that this paragraph (h) shall not apply (x) to any Transferee or New Lending
Office that becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of the
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (h)) do not
exceed the indemnity payment or additional amounts that the person making the
assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (g) above.
(i) Nothing contained in this Section 2.20 shall require any Lender or
the Issuing Bank (or any Transferee) or the Administrative Agent to make
available any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate . (a) In the event (i) any Lender or the Issuing Bank delivers
a certificate requesting compensation pursuant to Section 2.14, (ii) any Lender
or the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.20, the Borrower may, at its sole expense and effort, upon
notice to such Lender or the Issuing Bank and the Administrative Agent, require
such Lender or the Issuing Bank to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04,
except that the Borrower or such assignee shall pay the processing and
recordation fee referred to in clause (ii) thereof), all of its interests,
rights and obligations under this Agreement to an assignee designated in such
notice that shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment), PROVIDED that (x) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Authority having jurisdiction, (y) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Credit Commitment is being assigned, of the Issuing Bank and the
Swingline Lender), which consent shall not unreasonably be withheld, and (z) the
Borrower or such assignee shall have paid to the affected Lender or the Issuing
Bank in immediately available funds an amount equal to the sum of the principal
of and interest accrued to the date of such payment on the outstanding Loans and
participation in L/C Disbursements and Swingline Loans of such Lender or the
Issuing Bank plus all Fees and other amounts accrued for the account of such
Lender or the Issuing Bank hereunder and under the other Loan Documents
(including any amounts under Section 2.14 and Section 2.16); PROVIDED FURTHER
that, if prior to any such transfer and assignment the circumstances or event
that resulted in such Lender's or the Issuing Bank's claim for compensation
under Section 2.14 or notice under Section 2.15 or the amounts paid pursuant to
Section 2.20, as the case may be, cease to cause such Lender or the Issuing Bank
to suffer increased costs or reductions in amounts received or receivable or
reduction in return on capital, or cease to have the consequences specified in
Section 2.15, or cease to result in amounts being payable under Section 2.20, as
the case may be (including as a result of any action taken by such Lender or the
Issuing Bank pursuant to paragraph (b) below), or if such Lender or the Issuing
Bank shall waive its right to claim further compensation under Section 2.14 in
respect of such circumstances or event or shall withdraw its notice under
Section 2.15 or shall waive its right to further payments under Section 2.20 in
respect of such circumstances or event, as the case may be, then such Lender or
the Issuing Bank shall not thereafter be required to make any such transfer and
assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions, as determined by such
Lender or Issuing Bank, or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its duties and obligations as Lender or Issuing Bank hereunder to another of its
offices, branches or affiliates, if such filing or assignment would reduce its
claims for compensation under Section 2.14 or enable it to withdraw its notice
pursuant to Section 2.15 or would reduce amounts payable pursuant to Section
2.20, as the case may be, in the future. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender or the Issuing Bank in
connection with any such filing or assignment, delegation and transfer.
SECTION 2.22. Swingline Loans . (a) SWINGLINE COMMITMENT. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower at any time
and from time to time on and after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitments in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of all Swingline Loans exceeding $10,000,000 in the aggregate
or (ii) the Aggregate Revolving Credit Exposure, after giving effect to any
Swingline Loan, exceeding the Total Revolving Credit Commitment. Each Swingline
Loan shall be in a principal amount that is an integral multiple of $50,000 and
not less than $100,000. The Swingline Commitment may be terminated or reduced
from time to time as provided herein. Within the foregoing limits, the Borrower
may borrow, pay or prepay and reborrow Swingline Loans hereunder, subject to the
terms, conditions and limitations set forth herein.
(b) SWINGLINE LOANS. The Borrower shall notify the Administrative Agent
in writing or by telecopy (or by telephone promptly confirmed in writing or by
telecopy), not later than 12:00 (noon), New York City time, on the day of a
proposed Swingline Loan. Such notice shall be delivered on a Business Day, shall
be irrevocable and shall refer to this Agreement and shall specify the requested
date (which shall be a Business Day) and amount of such Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any notice
received from the Borrower pursuant to this paragraph (b). 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 2:00
p.m. on the date such Swingline Loan is so requested.
(c) PREPAYMENT. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or telecopy notice (or telephonic notice promptly confirmed by written
or telecopy notice) to the Swingline Lender and to the Administrative Agent
before 2:00 p.m., New York City time, on the date of prepayment at the Swingline
Lender's address for notices specified on Schedule 2.01, provided that all or
any portion of a Swingline Loan borrowed and prepaid on the same date shall be
deemed to have been outstanding for one day.
(d) INTEREST. Each Swingline Loan shall be an ABR Loan and, subject to
the provisions of Section 2.07, shall bear interest as provided in Section
2.06(a).
(e) PARTICIPATIONS. 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 Revolving Credit 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 Revolving
Credit Lenders will participate. The Administrative Agent will, promptly upon
receipt of such notice, give notice to each Revolving Credit Lender, specifying
in such notice such Lender's Pro Rata Percentage of such Swingline Loan or
Loans. In furtherance of the foregoing, each Revolving Credit 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 Revolving Credit Lender's Pro Rata 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 an Event of Default,
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 2.02(c) with respect to Loans made by
such Lender (and Section 2.02(c) 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 (or other party liable for obligations
of the Borrower) of any default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) GENERAL. The Borrower may
request the issuance of a Letter of Credit, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, appropriately completed, for the
account of the Borrower or any Subsidiary (other than JAIX Leasing or any
subsidiary thereof), at any time and from time to time while the Revolving
Credit Commitments remain in effect, PROVIDED that the Borrower shall be a
co-applicant with respect to each Letter of Credit issued for the account of any
Subsidiary. This Section shall not be construed to impose an obligation upon the
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement. Any Letter of Credit may, in the absolute
discretion of the Issuing Bank and The Chase Manhattan Bank (and shall, at the
request of the Borrower) be issued by The Chase Manhattan Bank, and, in the
event of any such issuance, all references herein and in the other Loan
Documents to the term "Issuing Bank" shall, with respect to any such Letter of
Credit, be deemed to refer to The Chase Manhattan Bank in such capacity, as the
context shall require.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver
or telecopy to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that, after giving effect to such issuance,
amendment, renewal or extension (A) the L/C Exposure shall not exceed
$35,000,000 and (B) the Aggregate Revolving Credit Exposure shall not exceed the
Total Revolving Credit Commitment.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at the close
of business on the earlier of the date one year after the date of the issuance
of such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date. Each Letter of Credit may, upon the request of the
Borrower, include a provision whereby such Letter of Credit shall be renewed
automatically for additional consecutive periods of 12 months or less (but not
beyond the date that is five Business Days prior to the Revolving Credit
Maturity Date) unless the Issuing Bank notifies the beneficiary thereof at least
30 days prior to the then-applicable expiry date that such Letter of Credit will
not be renewed.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit and
without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Revolving Credit Lender, and each such
Revolving Credit Lender hereby acquires from the applicable Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Pro Rata
Percentage of the aggregate amount available to be drawn under such Letter of
Credit, effective upon the issuance of such Letter of Credit. In consideration
and in furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Revolving Credit Lender's Pro Rata
Percentage of each L/C Disbursement made by the Issuing Bank and not reimbursed
by the Borrower (or, if applicable, another party pursuant to its obligations
under any other Loan Document) forthwith on the date due as provided in Section
2.02(f). Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower shall pay to the
Administrative Agent an amount equal to such L/C Disbursement not later than
3:00 p.m., New York City time, on the day on which the Borrower shall have
received notice from the Issuing Bank that payment of such draft will be made,
or, if the Borrower shall have received such notice later than 11:00 a.m., New
York City time, on any Business Day, the Borrower shall make such payment not
later than 11:00 a.m., New York City time, on the immediately following Business
Day. In the event that a trustee under the Bond Documents makes a payment to an
Issuing Bank directly as reimbursement for an L/C Disbursement, such Issuing
Bank shall, promptly upon receipt thereof, notify the Administrative Agent of
its receipt thereof and forward, disburse or retain such amount in accordance
with the directions of the Administrative Agent.
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligations to reimburse
L/C Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all or
any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Subsidiary or other Affiliate thereof or any
other person may at any time have against the beneficiary under any
Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other person, whether in connection with this
Agreement, any other Loan Document or any other related or unrelated
agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with
the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions
of this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or wilful misconduct in the performance of
its obligations hereunder; it is understood that the Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary
and, in making any payment under any Letter of Credit (i) the Issuing Bank's
exclusive reliance on the documents presented to it under such Letter of Credit
as to any and all matters set forth therein, including reliance on the amount of
any draft presented under such Letter of Credit, whether or not the amount due
to the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (ii) any noncompliance in any immaterial respect of the documents presented
under such Letter of Credit with the terms thereof shall, in each case, be
deemed not to constitute wilful misconduct or gross negligence of the Issuing
Bank.
(g) DISBURSEMENT PROCEDURES. The following disbursement procedures
shall be followed:
(i) The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly
as possible give telephonic notification, confirmed by telecopy, to
the Administrative Agent and the Borrower of such demand for payment
and whether the Issuing Bank has made or will make an L/C
Disbursement thereunder; PROVIDED, HOWEVER, that any failure to give
or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Credit
Lenders with respect to any such L/C Disbursement pursuant to
Section 2.23(e). The Administrative Agent shall promptly give each
Revolving Credit Lender notice thereof.
(ii) In the event that under the Bond Documents an Issuing Bank is
given the right to approve disbursements from any project fund or
construction fund created with respect to the applicable bonds, the
Issuing Bank will provide a copy of the disbursement request
document to the Administrative Agent, and provide or withhold such
consent in accordance with the directions of the Administrative
Agent; PROVIDED that the Administrative Agent agrees to exercise the
same discretion with respect to a disbursement request that the
applicable Issuing Bank is required to exercise under the applicable
Bond Documents.
(h) INTERIM INTEREST. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02 (f), at the rate per annum that would apply
to such amount if such amount were an ABR Loan. In the event that any bonds
issued under the Bond Documents are pledged under the terms of the applicable
Bond Documents to secure payment of unreimbursed L/C Disbursements, interest
paid with respect to such bonds shall be credited to the interest due hereunder,
and in the event that any Issuing Bank receives such interest payments on any
such bond directly from a bond trustee, such Issuing Bank shall immediately
notify the Administrative Agent of its receipt thereof and forward, disburse or
retain such amount in accordance with the directions of the Administrative
Agent.
(i) RESIGNATION OR REMOVAL OF THE ISSUING BANK. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Borrower shall pay all accrued and
unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment
as the Issuing Bank hereunder by a successor Lender shall be evidenced by an
agreement entered into by such successor, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Lender shall have all the rights and obligations
of the previous Issuing Bank under this Agreement and the other Loan Documents
and (ii) references herein and in the other Loan Documents to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the resignation or removal of the Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made in the sole discretion of the Collateral Agent, such deposits shall not
bear interest (it being understood that the Collateral Agent shall have no
obligation to invest such amounts in any investments other than overnight
Permitted Investments). Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) subject to the consent of Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit), be applied to satisfy the Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
(k) ADDITIONAL ISSUING BANKS. The Borrower may, at any time and from time
to time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the terms of this Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed (in
addition to being a Lender) to be the Issuing Bank with respect to Letters of
Credit issued or to be issued by such Lender, and all references herein and in
the other Loan Documents to the term "Issuing Bank" shall, with respect to such
Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing
Bank, as the context shall require.
(l) EXISTING LETTERS OF CREDIT. Each Existing Letter of Credit shall be
deemed to be a Letter of Credit issued hereunder, and on the Closing Date each
Revolving Credit Lender shall be deemed to have been granted and acquired a
participation therein pursuant to paragraph (d) above.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent,
the Collateral Agent, the Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers . Each of the Borrower and each
of the Subsidiaries (a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
all requisite power and authority to own its property and assets and to carry on
its business as now conducted and as proposed to be conducted, (c) is qualified
to do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated hereby to which it is or will be a party and, in the case of the
Borrower, to borrow hereunder.
SECTION 3.02. Authorization . The execution, delivery and
performance of (a) each of the Loan Documents by each Loan Party, (b) the
Acquisition Agreement by the Borrower and Sub, (c) the borrowings hereunder, the
issuances of the Letters of Credit, the use of the proceeds of the Loans and the
Letters of Credit and the creation of the security interests contemplated by the
Loan Documents and (d) the consummation of the Acquisition, the refinancing of
the Existing Loan Agreement and the other transactions contemplated by the
Acquisition Agreement and the Loan Documents (collectively, the "TRANSACTIONS")
(i) have been duly authorized by all requisite corporate and, if required,
stockholder action of the Borrower and each applicable Subsidiary and (ii) will
not (x) violate (A) any provision of any law, statute, rule or regulation
applicable to the Borrower or any Subsidiary or any of their properties, or of
the certificate or articles of incorporation or other constitutive documents or
by-laws of the Borrower or any Subsidiary, (B) any order of any Governmental
Authority applicable to the Borrower or any Subsidiary or any of their
properties or (C) any provision of any indenture, material agreement or other
material instrument to which the Borrower or any Subsidiary is a party or by
which any of them or any of their property is or may be bound, (y) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any Subsidiary (other
than any Lien created under the Security Documents or permitted by Section
6.02).
SECTION 3.03. Enforceability . This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Loan Document when
executed and delivered by each Loan Party party thereto will constitute, a
legal, valid and binding obligation of such Loan Party enforceable against such
Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals . No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the execution, delivery or
performance of the Loan Documents by the Borrower and each applicable
Subsidiary, or the consummation of the Transactions, except for (a) the filing
of Uniform Commercial Code financing statements and filings with the United
States Patent and Trademark Office and the United States Copyright Office, (b)
recordation of the Mortgages and (c) such as have been made or obtained and are
in full force and effect.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders its consolidated balance sheets and related statements
of income, changes in stockholders' equity and cash flows (i) as of and for the
fiscal year ended December 31, 1998, audited by and accompanied by the opinion
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, and (ii) as of and for
the fiscal quarter and the portion of the fiscal year ended March 31, 1999,
certified by its Financial Officer. Such financial statements present fairly the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods (except, in the
case of such unaudited financial statements, for normal year-end adjustments).
Such balance sheets and the notes thereto disclose all material liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries as of
the dates thereof of the kind required to be disclosed on a balance sheet in
accordance with GAAP. Such financial statements were prepared in accordance with
GAAP applied on a consistent basis.
(b) The Borrower has heretofore delivered to the Lenders (i) its
unaudited pro forma consolidated balance sheet as of March 31, 1999, prepared
giving effect to the Transactions as if they had occurred on such date and (ii)
its unaudited pro forma statements of operations for the fiscal year ended
December 31, 1998 and the three months ended March 31, 1999, prepared giving
effect to the transactions as if they had occurred on January 1, 1998. Such pro
forma financial statements have been prepared in good faith by the Borrower,
based on the assumptions used to prepare the pro forma financial information
contained in the Confidential Information Memorandum (which assumptions are
believed by the Borrower on the date hereof and on the Closing Date to be
reasonable), accurately reflect all adjustments required to be made to give
effect to the Transactions and present fairly on a pro forma basis the estimated
consolidated financial position of the Borrower and its consolidated
Subsidiaries as of the respective dates thereof, assuming that the Transactions
had actually occurred on the applicable date set forth above.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, properties, financial
condition, contingent liabilities or material agreements of the Borrower and the
Subsidiaries, taken as a whole, since December 31, 1998.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each
of the Borrower and the Subsidiaries has good and marketable title to, or valid
leasehold interests in, all its material properties and assets (including all
Mortgaged Property). All such material properties and assets are free and clear
of Liens, other than Liens expressly permitted by Section 6.02, and no material
portion of any Mortgaged Property is subject to any lease, license, sublease or
other agreement granting to any person any right to use, occupy or enjoy the
same, except as set forth on Schedule 3.07(a).
(b) Each of the Borrower and the Subsidiaries has complied with all
obligations under all material leases to which it is a party and all such leases
are in full force and effect. Each of the Borrower and the Subsidiaries enjoys
peaceful and undisturbed possession under all such material leases, except where
the failure to have such possession could not reasonably be expected to result
in a Material Adverse Effect.
(c) Except as set forth on Schedule 3.07(c), as of the Closing Date,
neither the Borrower nor any of the Subsidiaries has received any notice of, nor
has any knowledge of, any pending or contemplated condemnation proceeding
affecting the Mortgaged Properties or any sale or disposition thereof in lieu of
condemnation.
(d) Neither the Borrower nor any of the Subsidiaries is obligated
under any right of first refusal, option or other contractual right to sell,
assign or otherwise dispose of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the
Closing Date a list of all Subsidiaries and the percentage ownership interest of
the Borrower therein. The shares of capital stock or other ownership interests
so indicated on Schedule 3.08 are fully paid and non-assessable and are owned by
the Borrower, directly or indirectly, free and clear of all Liens (other than
Liens created under the Security Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set
forth on Schedule 3.09(a), there are not any actions, suits or proceedings at
law or in equity or by or before any Governmental Authority now pending or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or
any Subsidiary or any business, property or rights of any such person (i) that
involve any Loan Document or the Transactions or (ii) 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.
(b) Except as set forth on Schedule 3.09(b), none of the Borrower or
any of the Subsidiaries or any of their respective material properties or assets
(including the Mortgaged Properties) is in violation of, nor will the continued
operation of such material properties and assets as currently conducted violate,
any law, rule or regulation (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits) or any restrictions of
record or agreements affecting the Mortgaged Property, or is in default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be expected to
result in a Material Adverse Effect.
(c) Except as contemplated in Section 5.16 hereof, certificates of
occupancy (or other documents expressly provided for under applicable law in
lieu thereof) are in effect for each Mortgaged Property as currently
constructed, and true and complete copies of such certificates of occupancy have
been delivered to the Collateral Agent as mortgagee with respect to each
Mortgaged Property.
SECTION 3.10. Agreements . (a) Neither the Borrower nor any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in default
in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) Neither the
Borrower nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will
be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, for any purpose that entails a violation of, or that is
inconsistent with, the provisions of the Regulations of the Board, including
Regulation U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act . Neither the Borrower nor any Subsidiary 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 3.13. Use of Proceeds . The Borrower will use the proceeds
of the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns . Each of the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, state, local and
foreign tax returns or materials required to have been filed by it and has paid
or caused to be paid all material taxes due and payable by it and all material
assessments received by it, except taxes that are being contested in good faith
by appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements . None of (a) the
Confidential Information Memorandum or (b) any other information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain (in each case, at the time
furnished) any material misstatement of fact or omitted, omits or will omit to
state any material fact necessary to make the statements therein, taken as a
whole and in the light of the circumstances under which they were, are or will
be (in each case, at the time furnished) made, not misleading; PROVIDED that to
the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, the Borrower
represents only that it acted in good faith and utilized reasonable assumptions
and due care in the preparation of such information, report, financial
statement, exhibit or schedule at the time prepared.
SECTION 3.16. Employee Benefit Plans . Each of the Borrower and its
ERISA Affiliates is in compliance with the applicable provisions of ERISA and
the Code and the regulations and published interpretations thereunder, and no
ERISA Event has occurred or could reasonably be expected to occur, except in
each case for any such failures to so comply and ERISA Events that, individually
or in the aggregate, could not reasonably be expected to result in a liability
of the Borrower and any ERISA Affiliate in excess of $3,000,000. The present
value of all benefit liabilities under each Plan (based on those assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the last valuation date applicable thereto prior to the Closing Date,
exceed by more than $5,347,044 the fair market value of the assets of such Plan,
and the present value of all benefit liabilities of all underfunded Plans (based
on those assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the last valuation dates applicable thereto
prior to the Closing Date, exceed by more than $7,233,951 the fair market value
of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters . Except as set forth in
Schedule 3.17:
(a) The Borrower and the Subsidiaries have obtained all
Environmental Permits with respect to the facilities and properties owned,
leased or operated by the Borrower or any of the Subsidiaries (the
"Properties"), and the Borrower and the Subsidiaries are in compliance, and in
the last six years have been in compliance, with all Environmental Laws and all
Environmental Permits, except in each case, to the extent that such failure to
obtain any Environmental Permits or noncompliance with Environmental Laws could
not reasonably be expected to result in a Material Adverse Effect (without
taking into account any anticipated recoveries from third party sources);
(b) There have been no Releases or threatened Releases at, from,
under or proximate to the Properties or otherwise in connection with the
operations of the Borrower or the Subsidiaries, which Releases or threatened
Releases could reasonably be expected to result in a Material Adverse Effect
(without taking into account any anticipated recoveries from third party
sources);
(c) Neither the Borrower nor any of the Subsidiaries has received
written notice of an Environmental Claim in connection with (1) the Properties,
(2) the operations of the Borrower or the Subsidiaries or (3) any person whose
liabilities for environmental matters the Borrower or the Subsidiaries has
retained or assumed, in whole or in part, contractually, by operation of law or
otherwise that, in the aggregate, could reasonably be expected to result in a
Material Adverse Effect (without taking into account any anticipated recoveries
from third party sources), nor, to the best knowledge of the Borrower and the
Subsidiaries, is any such Environmental Claim being threatened;
(d) Hazardous Materials have not been transported, generated,
treated, stored or disposed of from, at, on or under any of the Properties in
violation of, or in any manner or to a location that could give rise to
liability under, any Environmental Law, except to the extent that such
violations or liabilities, in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect (without taking into account any anticipated
recoveries from third party sources);
(e) There are no underground or aboveground storage tanks or
Hazardous Materials present at any of the Properties at levels, volumes,
locations or for durations of time that, in any such case, would constitute a
violation of any Environmental Law, in any such case, except for any
noncompliance with Environmental Laws that could not reasonably be expected to
have a Material Adverse Effect.
(f) There are no past or present actions, activities, events,
conditions or circumstances, including the Release, threatened Release,
generation, treatment or storage of Hazardous Materials at any location, that
could reasonably be expected to give rise to liability of the Borrower or any of
the Subsidiaries under any Environmental Law or any contract or agreement,
except to the extent that any such liabilities, individually or in the
aggregate, could not result in a Material Adverse Effect (without taking into
account any anticipated recoveries from third party sources).
SECTION 3.18. Insurance . Schedule 3.18 sets forth a true, complete
and correct summary description of all insurance maintained by or for the
Borrower or any Subsidiary (other than JAIX Leasing or any subsidiary thereof)
as of the date hereof and the Closing Date. As of each such date, such insurance
is in full force and effect and all premiums then due have been duly paid. The
Borrower and its Subsidiaries have insurance in such amounts and covering such
risks and liabilities as are in accordance with normal industry practice,
including business interruption insurance.
SECTION 3.19. Security Documents . (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgor thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
offices specified on Schedule 6 to the Perfection Certificate, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property (as defined in the Security Agreement) or
Equipment (as defined in the Security Agreement) consisting of railcars), in
each case prior and superior in right to any other person, other than with
respect to Liens expressly permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in the Intellectual Property
(as defined in the Security Agreement) in which a security interest may be
perfected by filing, recording or registering a security agreement, financing
statement or analogous document in the United States Patent and Trademark Office
or the United States Copyright Office, as applicable, in each case prior and
superior in right to any other person (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the Loan Parties
after the date hereof). When the Security Agreement is filed in appropriate form
with the Interstate Commerce Commission, the Security Agreement shall constitute
a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in the Equipment (as defined in the Security
Agreement) consisting of railcars.
(d) The Mortgages are effective to create, subject to the exceptions
listed in each title insurance policy covering such Mortgage, in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable Lien on all of the Loan Parties' right, title and interest in
and to the Mortgaged Properties thereunder and the proceeds thereof, and when
the Mortgages are filed in the offices specified on Schedule 3.19(d), the
Mortgages shall constitute a Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Mortgaged Properties and the proceeds
thereof, in each case prior and superior in right to any other person, other
than with respect to the rights of persons pursuant to Liens expressly permitted
by Section 6.02.
(e) The ▇▇▇▇▇▇▇ Pledge and Security Agreement is effective to create
in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the ▇▇▇▇▇▇▇ Bonds
and, when any of the ▇▇▇▇▇▇▇ Bonds are delivered to the Collateral Agent, the
▇▇▇▇▇▇▇ Pledge and Security Agreement shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
pledgor thereunder in such ▇▇▇▇▇▇▇ Bonds, in each case prior and superior in
right to any other person.
SECTION 3.20. Location of Real Property and Leased Premises . (a)
Schedule 3.20(a) lists completely and correctly as of the Closing Date all real
property owned by the Borrower and the Subsidiaries (other than JAIX Leasing or
any subsidiary thereof) and the addresses thereof. The Borrower and such
Subsidiaries own in fee all the real property set forth on Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the
Closing Date all real property leased by the Borrower and the Subsidiaries
(other than JAIX Leasing or any subsidiary thereof) and the addresses thereof.
The Borrower and such Subsidiaries have valid leasehold interests in all the
real property set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened. The hours
worked by and payments made to employees of the Borrower and the Subsidiaries
have not been in a material violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters.
All payments due from the Borrower or any Subsidiary, or for which any claim may
be made against the Borrower or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Borrower or such Subsidiary. The consummation of
the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Borrower or any Subsidiary is bound.
SECTION 3.22. Solvency . Immediately after the consummation of the
Transactions and the execution of the Loan Documents, and immediately following
the making of each Loan made on the Closing Date and after giving effect to the
application of the proceeds of such Loans, (i) the fair value of the assets of
each Loan Party, at a fair valuation on a going concern basis, will exceed its
debts and liabilities, subordinated, contingent or otherwise; (ii) the present
fair saleable value of the property of each Loan Party will be greater than the
amount that will be required to pay the probable liability on its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) each Loan Party will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) each Loan Party
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 the Closing Date.
SECTION 3.23. Existing Letters of Credit . Schedule 3.23 accurately
and completely describes each letter of credit outstanding immediately prior to
the Closing Date and issued for the account of the Borrower or any Subsidiary
(other than JAIX Leasing or any subsidiary thereof).
SECTION 3.24. Senior Indebtedness . The Obligations constitute
"SENIOR INDEBTEDNESS" under and as defined in the Subordinated Debt Documents.
SECTION 3.25. Year 2000 . Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (a) the computer systems
of the Borrower and the Subsidiaries and (b) equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
Borrower's or any Subsidiary's systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed by September 30,
1999. The cost to the Borrower and its Subsidiaries of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to the
Borrower and the Subsidiaries (including reprogramming errors and the failure of
others' systems or equipment) could not reasonably be expected to result in a
Default or a Material Adverse Effect.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank
to issue, amend, renew or extend Letters of Credit hereunder are subject to the
satisfaction of the following conditions:
SECTION 4.01. All Credit Events . On the date of each Borrowing
(other than (i) any Revolving Credit Borrowing made pursuant to Section 2.02(f),
(ii) any continuation or conversion of a Revolving Credit Borrowing pursuant to
Section 2.10 into a Revolving Credit Borrowing that does not increase the
aggregate principal amount of Revolving Loans outstanding and (iii) any
continuation or conversion of a Term Loan pursuant to Section 2.10), including
each Borrowing of a Swingline Loan, and on the date of each issuance, amendment,
renewal or extension of a Letter of Credit (each such event being called a
"CREDIT EVENT"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or, in the case of the issuance,
amendment, renewal or extension of a Letter of Credit, the Issuing Bank
and the Administrative Agent shall have received a notice requesting
the same as required by Section 2.23(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the
Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of
the date of such Credit Event with the same effect as though made on
and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) Each Loan Party shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part
to be observed or performed, and at the time of and immediately after
such Credit Event, no Event of Default or Default shall have occurred
and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Credit Event as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event . On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself,
the Lenders and the Issuing Bank, a favorable written opinion of
(i) Winston & ▇▇▇▇▇▇, counsel for the Borrower, substantially to the
effect set forth in Exhibit J-1, and (ii) each local counsel listed
on Schedule 4.02(a), substantially to the effect set forth in
Exhibit J-2, in each case (A) dated the Closing Date, (B) addressed
to the Issuing Bank, the Administrative Agent and the Lenders, and
(C) covering such other matters relating to the Loan Documents and
the Transactions as the Administrative Agent shall reasonably
request, and the Borrower hereby requests such counsel to deliver
such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder and the other Loan Documents shall be
reasonably satisfactory to the Lenders, to the Issuing Bank and to
Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments
thereto, of each Loan Party, certified as of a recent date by the
Secretary of State of the state of its organization, and a
certificate as to the good standing of each Loan Party as of a
recent date, from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of each Loan Party dated the
Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of such Loan Party as in effect on the
Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto
is a true and complete copy of resolutions duly adopted by the Board
of Directors of such Loan Party authorizing the execution, delivery
and performance of the Loan Documents to which such person is a
party and, in the case of the Borrower, the borrowings hereunder,
and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate
or articles of incorporation of such Loan Party have not been
amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above,
and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in
connection herewith on behalf of such Loan Party; (iii) a
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as
the Lenders, the Issuing Bank or Cravath, Swaine & ▇▇▇▇▇, counsel
for the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received all Fees and other amounts
due and payable on or prior to the Closing 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 or under
any other Loan Document.
(f) The ▇▇▇▇▇▇▇ Pledge and Security Agreement shall have been duly executed
by the Borrower, ▇▇▇▇▇▇▇, the custodian (as identified therein) and
delivered to the Collateral Agent and shall be in full force and
effect.
(g) The Pledge Agreement shall have been duly executed by the Borrower
and each Guarantor party thereto and delivered to the Collateral
Agent and shall be in full force and effect, and all the outstanding
capital stock of the Subsidiaries and promissory notes evidencing
all intercompany indebtedness owed to any Loan Party shall have been
duly and validly pledged thereunder to the Collateral Agent for the
ratable benefit of the Secured Parties and certificates representing
such shares or promissory notes, accompanied by instruments of
transfer (stock powers or note powers, as applicable), endorsed in
blank, with respect to such stock certificates and promissory notes,
shall be in the actual possession of the Collateral Agent; PROVIDED
that (i) neither the Borrower nor any Domestic Subsidiary shall be
required to pledge more than 65% of the voting stock of any Foreign
Subsidiary and (ii) no Foreign Subsidiary shall be required to
pledge the capital stock of any of its Foreign Subsidiaries .
(h) The Security Agreement shall have been duly executed by the
Borrower and each Guarantor and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date
and each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the
Secured Parties a valid, legal and perfected first-priority security
interest in and lien on the Collateral (subject to the post-closing
conditions set forth in Section 5.17 and any Lien expressly
permitted by Section 6.02) described in such agreement shall have
been delivered to the Collateral Agent.
(i) The Collateral Agent shall have received the results of a search
of the Uniform Commercial Code (or equivalent filings) filings made
with respect to the Loan Parties in the states (or other
jurisdictions) in which the chief executive office of each such
person is located, any offices of such persons in which records have
been kept relating to Accounts and the other jurisdictions in which
Uniform Commercial Code filings (or equivalent filings) are to be
made pursuant to the preceding paragraph, together with copies of
the financing statements (or similar documents) disclosed by such
search, and accompanied by evidence satisfactory to the Collateral
Agent that the Liens indicated in any such financing statement (or
similar document) would be permitted under Section 6.02, have been
released or shall be released upon the disbursement of the proceeds
of the initial Borrowing.
(j) The Collateral Agent shall have received a Perfection Certificate with
respect to the Loan Parties dated the Closing Date and duly executed by
a Responsible Officer of the Borrower.
(k) (i) Each of the Security Documents, in form and substance
reasonably satisfactory to the Lenders, relating to each of the
Mortgaged Properties shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full
force and effect, (ii) each of such Mortgaged Properties shall not
be subject to any Lien other than those permitted under Section 6.02
and those exceptions to title reasonably acceptable to the
Collateral Agent and its counsel and listed in each loan title
insurance policy, (iii) each of such Security Documents shall have
been filed and recorded in the recording office as specified on
Schedule 3.19(d) (or a lender's title insurance policy, in form and
substance reasonably acceptable to the Collateral Agent, insuring
such Security Document as a first lien on such Mortgaged Property
(subject to any Lien permitted by Section 6.02) shall have been
received by the Collateral Agent) and, in connection therewith, the
Collateral Agent shall have received evidence reasonably
satisfactory to it of each such filing and recordation and (iv) the
Collateral Agent shall have received such other documents, including
a policy or policies of title insurance issued by a nationally
recognized title insurance company, together with such endorsements,
coinsurance and reinsurance as may be reasonably requested by the
Collateral Agent and the Lenders, insuring the Mortgages as valid
first liens on the Mortgaged Properties, free of Liens other than
those permitted under Section 6.02, together with such surveys,
abstracts, appraisals and legal opinions required to be furnished
pursuant to the terms of the Mortgages or as reasonably requested by
the Collateral Agent or the Lenders.
(l) The Guarantee Agreement shall have been duly executed by each
Guarantor, shall have been delivered to the Collateral Agent and shall
be in full force and effect.
(m) The Indemnity, Subrogation and Contribution Agreement shall have been
duly executed by each Loan Party, shall have been delivered to the
Collateral Agent and shall be in full force and effect.
(n) All conditions to the Acquisition in the Acquisition Agreement
shall have been satisfied (without giving effect to any waiver
thereof that is, in the reasonable judgment of the Lenders, adverse
to the interests of the Lenders), in all material respects, and the
Acquisition shall have been, or shall simultaneously with the first
Credit Event be, consummated in accordance with applicable law and,
in all material respects, the Acquisition Agreement (without giving
effect to any amendment thereof that is, in the reasonable judgment
of the Lenders, adverse to the interests of the Lenders).
(o) Substantially contemporaneously with the first Credit Event, the
Loan Parties shall have repaid in full the principal of all loans
outstanding, interest thereon and other amounts due and payable
under the Existing Loan Agreement and under each other agreement
related thereto, and the Administrative Agent shall have received
duly executed documentation either evidencing or necessary for
(i) the termination of the Existing Loan Agreement and each other
agreement related thereto, (ii) the cancelation of all commitments
thereunder and (iii) the termination of all related agreements and
guarantees and security interests granted by any Loan Party or any
Subsidiary or any other person in connection therewith and the
discharge of all obligations or interests thereunder.
(p) The Lenders shall have received a pro forma consolidated balance sheet
of the Borrower as of March 31, 1999, after giving effect to the
Acquisition and the consummation of the other Transactions, which shall
not be materially inconsistent with the forecasts previously provided
to the Lenders.
(q) After giving effect to the Acquisition and the other Transactions, the
Borrower and the Subsidiaries shall have outstanding no Indebtedness or
preferred stock other than (a) the Loans hereunder and (b) the
Indebtedness shown on Schedule 6.01(a) or otherwise permitted pursuant
to Section 6.01.
(r) The Lenders shall be reasonably satisfied as to the amount and nature
of any material environmental and employee health and safety exposures
to which the Borrower and the Subsidiaries may be subject, and the
plans of the Borrower with respect thereto, after giving effect to the
Acquisition and the consummation of the other Transactions.
(s) The aggregate level of fees and expenses to be paid in connection with
the Transactions, the financing therefor and the other transactions
contemplated hereby shall not exceed $3,000,000.
(t) The Lenders shall have received the Borrower's consolidated
balance sheets and related statements of income, changes in
stockholders' equity and cash flows and the Seller's combined
balance sheets and related statements of income, changes in
stockholders' equity and cash flows (i) as of and for the fiscal
year ended December 31, 1998, audited by and accompanied by the
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants for
the Borrower, and Bumpus, Hall, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.,
independent public accountants for the Sellers, respectively, and
(ii) as of and for the fiscal quarter and the portion of the fiscal
year ended March 31, 1999, certified by a Financial Officer of the
Borrower and the Sellers, respectively, and shall not be materially
inconsistent with the forecasts for such periods previously provided
to the Lenders.
(u) All requisite Governmental Authorities and third parties shall have
approved or consented to the Acquisition and the other Transactions to
the extent required, all applicable appeal periods shall have expired
and there shall be no governmental or judicial action, actual or
threatened, that has a reasonable likelihood of restraining, preventing
or imposing material and burdensome conditions on the Acquisition or
the other Transactions.
(v) There shall be no litigation or administrative proceedings or other
legal or regulatory developments, actual or threatened, that, in the
reasonable judgment of the Lenders, involve a reasonable possibility of
a Material Adverse Effect or which would be materially inconsistent
with the assumptions underlying the projections contained in the
Confidential Information Memorandum.
(w) The Lenders shall be satisfied that the consummation of the
Transactions will not (i) violate any applicable law, statute, rule
or regulation or (ii) conflict with, or result in a default or event
of default under, (A) any indenture relating to any existing
Indebtedness of any Loan Party or any subsidiary of any Loan Party
that is not being repaid, repurchased or redeemed in full on or
prior to the Closing Date in connection with the Transactions or any
other indenture of any Loan Party or any subsidiary of any Loan
Party to be in effect after the Closing Date or (B) any other
material agreement of any Loan Party or any subsidiary of any Loan
Party.
(x) The Administrative Agent shall have received a copy of, or a
certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents.
(y) The Administrative Agent shall have received for each Mortgaged
Property one of the following: (A) a written confirmation from the
applicable zoning commission or other appropriate Governmental
Authority stating that each Mortgaged Property complies with
existing land use and zoning ordinances, regulations and
restrictions applicable to such Mortgaged Property, (B) an opinion
from local counsel acceptable to the Administrative Agent to the
same effect as covered by clause (A) above or (C) a zoning
endorsement satisfactory to the Administrative Agent in connection
with the Collateral Agent's mortgagee title insurance policy of such
Mortgaged Property.
(z) The Administrative Agent shall have received one or more environmental
assessment reports in form, scope and substance reasonably satisfactory
to the Lenders, from First Environment, Inc. as to any environmental
hazards, liabilities or Remedial Action to which the assets being
acquired in the Acquisition may be subject.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, the Borrower will, and will cause
each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties . (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of the business of the Borrower and its Subsidiaries,
taken as a whole; maintain and operate such business in substantially the manner
in which it is presently conducted and operated, except where the failure to do
so could not reasonably be expected to result in a Material Adverse Effect;
comply in all material respects with all building permits and restrictions of
record affecting the Mortgaged Property; and at all times maintain and preserve
all property material to the conduct of such business and keep such property in
good repair, working order and condition and from time to time make, or cause to
be made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance . (a) Keep its insurable properties
adequately insured at all times by financially sound and reputable insurers and
maintain such other insurance, all to such extent and against such risks,
including fire, casualty and other risks insured against by extended coverage,
as is customary with companies in the same or similar businesses operating in
the same or similar locations.
(b) Cause all such policies to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, if the insurance carrier shall have received written notice from
the Administrative Agent or the Collateral Agent of the occurrence of an Event
of Default, the insurance carrier shall (unless otherwise instructed by the
Administrative Agent pursuant hereto) pay all proceeds otherwise payable to the
Borrower or the Loan Parties under such policies directly to the Collateral
Agent; cause all such policies to provide that neither the Borrower, the
Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a "Replacement Cost Endorsement", without
any deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably require from time to time to
protect their interests; deliver original or certified copies of all such
policies or certificates to the Collateral Agent; cause each such policy or
certificate to provide that it shall not be canceled, modified or not renewed
(i) by reason of nonpayment of premium upon not less than 10 days' prior written
notice thereof by the insurer to the Administrative Agent and the Collateral
Agent (giving the Administrative Agent and the Collateral Agent the right to
cure defaults in the payment of premiums) or (ii) for any other reason upon not
less than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent; deliver to the Administrative
Agent and the Collateral Agent, prior to the cancelation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent) together with evidence reasonably
satisfactory to the Administrative Agent and the Collateral Agent of payment of
the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time reasonably require, or (ii) a "Zone 1" area, obtain earthquake insurance
in such total amount as the Administrative Agent, the Collateral Agent or the
Required Lenders may from time to time reasonably require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance, including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $5,000,000, naming the Collateral Agent as an
additional insured, on forms reasonably satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
promptly whenever any separate insurance concurrent in form or contributing in
the event of loss with that required to be maintained under this Section 5.02 is
taken out by the Borrower or applicable Subsidiary; and promptly deliver to the
Administrative Agent and the Collateral Agent a duplicate original copy of, or a
certificate as to cover under, such policy or policies.
(f) In connection with the covenants set forth in this Section 5.02,
it is understood and agreed that:
(i) none of the Administrative Agent, the Lenders, the Issuing Bank,
or their respective agents or employees shall be liable for any loss or
damage insured by the insurance policies required to be maintained
under this Section 5.02, it being understood that (A) the Borrower and
the other Loan Parties shall look solely to their insurance companies
or any other parties other than the aforesaid parties for the recovery
of such loss or damage and (B) such insurance companies shall have no
rights of subrogation against the Administrative Agent, the Collateral
Agent, the Lenders, the Issuing Bank or their agents or employees. If,
however, the insurance policies do not provide waiver of subrogation
rights against such parties, as required above, then the Borrower
hereby agrees, to the extent permitted by law, to waive, or cause the
applicable Subsidiary to waive, its right of recovery, if any, against
the Administrative Agent, the Collateral Agent, the Lenders, the
Issuing Bank and their agents and employees; and
(ii) the designation of any form, type or amount of insurance
coverage by the Administrative Agent, the Collateral Agent or the
Required Lenders under this Section 5.02 shall in no event be deemed a
representation, warranty or advice by the Administrative Agent, the
Collateral Agent or the Lenders that such insurance is adequate for the
purposes of the business of the Borrower and the Subsidiaries or the
protection of their properties and the Administrative Agent, the
Collateral Agent and the Required Lenders shall have the right from
time to time to require the Borrower and the other Loan Parties to keep
other insurance in such form and amount as the Administrative Agent,
the Collateral Agent or the Required Lenders may reasonably request,
PROVIDED that such insurance shall be obtainable on commercially
reasonable terms.
SECTION 5.03. Obligations and Taxes . Pay its material obligations
promptly and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise that, with respect to any of the foregoing, if unpaid, could
reasonably be expected to give rise to a Lien upon such properties or any part
thereof which is not permitted by Section 6.02; PROVIDED, HOWEVER, that such
payment and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of such Lien
and, in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
SECTION 5.04. Financial Statements, Reports, etc . In the case
of the Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
operations, stockholders' equity and cash flows showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the
operations of such Subsidiaries during such year, in the case of such
consolidated financial statements, audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or
other independent public accountants of recognized national standing
and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present 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 of the first three fiscal
quarters of each fiscal year, its consolidated and consolidating
balance sheets and related statements of operations, stockholders'
equity and cash flows showing the financial condition of the Borrower
and its consolidated Subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations of such
Subsidiaries during such fiscal quarter and the then elapsed portion of
the fiscal year, all certified by one of its Financial Officers as
fairly presenting 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;
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of the accounting firm or
Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that no Event of Default or Default has
occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto, (ii) setting forth
computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the covenants contained in Sections
6.01, 6.04, 6.06, 6.09, 6.10, 6.11 and 6.12, and (iii) if such
computations include a computation of Consolidated EBITDA, Consolidated
Interest Expense or Consolidated Capital Expenditures for any period on
a pro forma basis as provided in the second sentence of the definition
of each such term, certifying that such computations (A) have been
prepared in good faith by the Borrower, based on the best information
available to the Borrower as of the date of delivery of such
certificate and on assumptions believed by the Borrower on such date to
be reasonable, (B) accurately reflect all adjustments required to be
made to give effect to the Transactions and any Permitted Acquisition,
as the case may be, and (C) present fairly on a pro forma basis the
Consolidated EBITDA or Consolidated Capital Expenditures, as the case
may be, of the Borrower and its consolidated Subsidiaries for such
period, based on the assumptions required to be made by each such
definition;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other final materials
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, or distributed to its shareholders, as the case
may be; and
(e) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.05. Litigation and Other Notices . Furnish to the
Administrative Agent, the Issuing Bank and each Lender, promptly (and, in any
event, no later than five days thereafter) upon the Borrower's knowledge or
receipt thereof, written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent, as soon as possible after, and in any event within 10
Business Days after any Responsible Officer of the Borrower or any ERISA
Affiliate knows or has reason to know that any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of the Borrower in an aggregate amount exceeding $1,000,000,
a statement of a Financial Officer of the Borrower setting forth details as to
such ERISA Event and the action, if any, that the Borrower has taken or proposes
to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections . Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law 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, at reasonable times
and as often as reasonably requested (a) permit any representatives designated
by the Administrative Agent or any Lender to visit and inspect the financial
records and the properties of the Borrower or any Subsidiary and to make
extracts from and copies of such financial records, and (b) permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of the Borrower or any Subsidiary with the
officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds . Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws . Except where the
failure so to comply could not reasonably be expected to result in a Material
Adverse Effect, comply, and require all lessees and other persons occupying its
Properties to comply, with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all Environmental
Permits necessary for its operations and Properties; and conduct any Remedial
Action in accordance with Environmental Laws; PROVIDED, HOWEVER, that neither
the Borrower nor any of the Subsidiaries shall be required to obtain or comply
with any Environmental Permits, to comply with Environmental Laws, or to
undertake any Remedial Action to the extent that its obligation to do so, in
each case, is being contested in good faith before the appropriate Governmental
Authority and appropriate reserves are being maintained in accordance with GAAP
with respect to such circumstances.
SECTION 5.10. Preparation of Environmental Reports . If a Default
caused by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 60 days after receipt of such request, at
the expense of the Borrower, an environmental site assessment report for the
Properties which are the subject of such Default, prepared by an environmental
consulting firm reasonably acceptable to the Administrative Agent and indicating
the presence or absence of Hazardous Materials and the estimated cost of any
compliance or Remedial Action in connection with such Properties.
SECTION 5.11. Further Assurances . Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority (with such exceptions as are expressly
permitted by the Loan Documents) of the security interests created or intended
to be created by the Security Documents. The Borrower will notify the
Administrative Agent prior to the Borrower or any Subsidiary (other than
Johnstown America Corporation, Freight Car Services, Inc. and JAIX Leasing)
acquiring any rail cars. The Borrower will cause any subsequently acquired or
organized Domestic Subsidiary (other than any Inactive Subsidiary or any
subsidiary of JAIX Leasing) to execute a Guarantee Agreement, Indemnity
Subrogation and Contribution Agreement and each applicable Security Document in
favor of the Collateral Agent. In addition, from time to time, the Borrower
will, at its cost and expense, promptly secure the Obligations by pledging or
creating, or causing to be pledged or created, perfected security interests with
respect to such of its assets and properties as the Administrative Agent or the
Required Lenders shall designate (it being understood that it is the intent of
the parties that the Obligations shall be secured by, among other things,
substantially all the assets of the Borrower (including real and other
properties acquired subsequent to the Closing Date)). Such security interests
and Liens will be created under the Security Documents and other security
agreements, mortgages, deeds of trust and other instruments and documents in
form and substance reasonably satisfactory to the Collateral Agent, and the
Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including legal opinions, title insurance commitments
and lien searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section. The Borrower agrees to provide such evidence as
the Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien
SECTION 5.12. Mortgaged Property Casualty and Condemnation . (a)
Notwithstanding any other provision of this Agreement or the Security Documents,
the Collateral Agent is authorized, at its option (for the benefit of the
Secured Parties), to collect and receive, to the extent payable to the Borrower
or any other Loan Party, all insurance proceeds, damages, claims and rights of
action under any insurance policies with respect to any insured casualty or
other insured damage ("CASUALTY") to any portion of any Mortgaged Property
(collectively, "INSURANCE PROCEEDS"), unless the amount of the related Insurance
Proceeds is less than $2,500,000 and an Event of Default shall not have occurred
and be continuing. The Borrower agrees to notify, and cause each applicable
Subsidiary to notify, the Collateral Agent and the Administrative Agent, in
writing, promptly after the Borrower or such Subsidiary obtains notice or
knowledge of any Casualty to a Mortgaged Property as to which the related
insurance proceeds or replacement costs are estimated in good faith to be
greater than $2,000,000, which notice shall set forth a description of such
Casualty and the Borrower's or such Subsidiary's good faith estimate of the
amount of related damages. The Borrower agrees, subject to the foregoing
limitations and exceptions, to endorse and transfer or cause to be endorsed or
transferred any Insurance Proceeds received by it or any other Loan Party to the
Collateral Agent.
(b) The Borrower will notify, and cause each applicable Subsidiary
to notify, the Collateral Agent and the Administrative Agent promptly upon
obtaining knowledge of the institution of any action or proceeding for the
taking of any Mortgaged Property, or any part thereof or interest therein, for
public or quasi-public use under the power of eminent domain, by reason of any
public improvement or condemnation proceeding, or in any other manner (a
"CONDEMNATION"). No settlement or compromise of any claim in connection with any
such action or proceeding shall be made without the consent of the Collateral
Agent, which consent shall not be unreasonably withheld. The Collateral Agent is
authorized, at its option (for the benefit of the Secured Parties), to collect
and receive all proceeds of any such Condemnation (in each case, the
"CONDEMNATION PROCEEDS"), all of which shall be applied pursuant to this Section
5.12. The Borrower agrees to execute or cause to be executed such further
assignments of any Condemnation Proceeds as the Collateral Agent may reasonably
require.
(c) In the event of any Condemnation of the Mortgaged Property, or
any part thereof and subject to the provisions of paragraph (e) below, the
Collateral Agent shall apply the Condemnation Proceeds FIRST, in the case of a
partial Condemnation, to the repair or restoration of any integrated structure
subject to such Condemnation or, in the case of a total Condemnation or a
Condemnation of substantially all of a Mortgaged Property (a "substantially all"
Condemnation), to the location of a replacement property, acquisition of such
replacement property and construction of the replacement structures, and SECOND,
shall apply the remainder of such Condemnation Proceeds (less the reasonable
costs, if any, incurred by the Collateral Agent in the recovery of such
Condemnation Proceeds, and net of taxes and other obligations required to be
paid out of such Condemnation Proceeds in accordance with the terms of the
agreements governing such obligations and this Agreement and the other Loan
Documents) to prepay obligations outstanding under this Agreement, with any
remaining Condemnation Proceeds being returned promptly thereafter to the
Borrower.
(d) In the event of any Casualty of less than 50% of the useable
square footage of the improvements of any Mortgaged Property, the Borrower shall
and shall cause each Subsidiary to, subject to the conditions contained in
paragraph (e), restore the Mortgaged Property to substantially its same
condition immediately prior to such Casualty. In the event of any Casualty of
50% or more of the useable square footage of the improvements of any Mortgaged
Property and so long as no Default or Event of Default has occurred and is
continuing, the Borrower shall have the option to either:
(i) restore, or cause the applicable Loan Party to restore, the
Mortgaged Property to a condition substantially similar to its
condition immediately prior to such Casualty and to invest the balance,
if any, of any Insurance Proceeds in equipment or other assets used in
any Loan Party's principal lines of business within 180 days after the
receipt thereof, PROVIDED that the Borrower or the applicable Loan
Party, pending such reinvestment, promptly deposits such excess
Insurance Proceeds in a cash collateral account established with the
Collateral Agent for the benefit of the Secured Parties; or
(ii) replace, or cause the applicable Loan Party to replace, the
Mortgaged Property with property of utility comparable to that of the
replaced Mortgaged Property and to invest the balance, if any, of any
Insurance Proceeds, in equipment, vehicles or other assets used in any
Loan Party's principal lines of business within 180 days after the
receipt thereof, PROVIDED that the Borrower or the applicable
Subsidiary, pending such reinvestment, promptly deposits such excess
Insurance Proceeds in a cash collateral account established with the
Collateral Agent for the benefit of the Secured Parties; or
(iii) direct, or cause the applicable Loan Party to direct, the
Collateral Agent to apply the related Insurance Proceeds to prepay
obligations outstanding under this Agreement, with any remaining
Insurance Proceeds being returned to the Borrower.
The Borrower agrees that any excess Insurance Proceeds that are not reinvested
in any Loan Party's principal lines of business as contemplated above will be
applied to prepay the Obligations, with any remainder being returned promptly
thereafter to the Borrower.
If required to do so, the Borrower shall make, or cause the
applicable Subsidiary to make, the election contemplated by the immediately
preceding paragraph by notifying the Collateral Agent and the Administrative
Agent promptly after the later to occur of (A) 10 days after the Borrower or the
applicable Subsidiary and its insurance carrier reach a final determination of
the amount of any Insurance Proceeds and (B) 45 days after the occurrence of the
Casualty. If the Borrower or the applicable Subsidiary shall be required or
shall elect to restore the Mortgaged Property, the insufficiency of any
Insurance Proceeds or Condemnation Proceeds to defray the entire expense of such
restoration shall in no way relieve the Borrower or the applicable Subsidiary of
such obligation so to restore. In the event the Borrower or the applicable
Subsidiary shall be required to restore or shall notify the Collateral Agent and
the Administrative Agent of its election to restore, the Borrower or the
applicable Subsidiary shall diligently and, as permitted by the circumstances
thereof, continuously prosecute the restoration of the Mortgaged Property to
completion. In the event of a Casualty where the Borrower or the applicable
Subsidiary is required to make the election set forth above and the Borrower or
the applicable Subsidiary shall fail to notify the Collateral Agent and the
Administrative Agent of its election within the period set forth above or shall
elect not to restore or replace the Mortgaged Property, the Collateral Agent
shall (after being reimbursed for all reasonable costs of recovery of such
Insurance Proceeds) apply such Insurance Proceeds to prepay the Obligations. In
addition, upon such prepayment, the Borrower shall be obligated to place, or
require the applicable Subsidiary to place, the remaining portion, if any, of
the Mortgaged Property in a safe condition that is otherwise in material
compliance with the requirements of applicable Governmental Authorities and the
provisions of this Agreement and the applicable Mortgage.
(e) Except as otherwise specifically provided in this Section 5.12,
all Insurance Proceeds and all Condemnation Proceeds (net of taxes and other
obligations required to be paid out of such Insurance Proceeds or Condemnation
Proceeds in accordance with the terms of the agreements governing such
obligations and this Agreement and the other Loan Documents) recovered by the
Collateral Agent (A) are to be applied to the restoration of the applicable
Mortgaged Property (less the reasonable cost, if any, to the Collateral Agent of
such recovery and of paying out such proceeds, including reasonable attorneys'
fees, other charges and disbursements and costs allocable to inspecting the Work
(as defined below)) and (B) shall be applied by the Collateral Agent to the
payment of the cost of restoring or replacing the Mortgaged Property so damaged,
destroyed or taken or of the portion or portions of the Mortgaged Property not
so taken (the "WORK") and (C) shall be paid out from time to time to the
Borrower or the applicable Subsidiary as and to the extent the Work (or the
location and acquisition of any replacement of any Mortgaged Property)
progresses for the payment thereof, but subject to each of the following
conditions:
(i) the Borrower or the applicable Subsidiary must, as promptly as
possible under the circumstances, commence the restoration process or
the location, acquisition and replacement process in connection with
the Mortgaged Property;
(ii) the Work shall be in the charge of an architect or engineer
(which may be an employee of the Borrower or any Subsidiary) and before
the Borrower or the applicable Subsidiary commences any Work, other
than temporary work to protect property or prevent interference with
business, the Collateral Agent shall have received the plans and
specifications and the general contract for the Work from the Borrower
or the applicable Subsidiary. The plans and specifications shall
provide for such Work that, upon completion thereof, the improvements
shall (A) be in material compliance with all requirements of applicable
Governmental Authorities such that all representations and warranties
of the Borrower or the applicable Subsidiary relating to the compliance
of such Mortgaged Property with applicable laws, rules or regulations
in this Agreement or the Security Documents will be correct in all
material respects and (B) be at least equal in value and general
utility to the improvements that were on such Mortgaged Property (or
that were on the Mortgaged Property that has been replaced, if
applicable) prior to the Casualty or Taking, and in the case of a
Taking, subject to the effect of such Taking;
(iii) except as provided in (iv) below, each request for payment
shall be made on seven days' prior notice to the Collateral Agent and
shall be accompanied by a certificate to be made by such architect or
engineer, stating (A) that all the Work completed has been done in
substantial compliance with the plans and specifications, (B) that the
sum requested is justly required to reimburse the Borrower or the
applicable Subsidiary for payments by the Borrower or the applicable
Subsidiary to, or is justly due to, the contractor, subcontractors,
materialmen, laborers, engineers, architects or other persons rendering
services or materials for the Work (giving a brief description of such
services and materials) and that, when added to all sums previously
paid out by the Collateral Agent, does not exceed the value of the Work
done to the date of such certificate;
(iv) each request for payment in connection with the acquisition of
a replacement Mortgaged Property shall be made on 30 days' (or such
lesser time period as to which the Collateral Agent shall, in any case,
agree) prior notice to the Collateral Agent and, in connection
therewith, (A) each such request shall be accompanied by a copy of the
sales contract or other document governing the acquisition of the
replacement property by the Borrower or the applicable Subsidiary and a
certificate of the Borrower or the applicable Subsidiary stating that
the sum requested represents the sales price under such contract or
document and the related reasonable transaction fees and expenses
(including brokerage fees) and setting forth in sufficient detail the
various components of such requested sum and (B) the Borrower or the
applicable Subsidiary shall (I) in addition to any other items required
to be delivered under this Section 5.12, provide the Administrative
Agent and the Collateral Agent with such opinions, documents,
certificates, title insurance policies, surveys and other insurance
policies as they may reasonably request and (II) take such other
actions as the Administrative Agent and the Collateral Agent may
reasonably deem necessary or appropriate (including actions with
respect to the delivery to the Collateral Agent of a first priority
Mortgage with respect to such real property for the ratable benefit of
the Secured Parties);
(v) each request shall be accompanied by waivers of lien reasonably
satisfactory to the Collateral Agent covering that part of the Work for
which payment or reimbursement is being requested and, if reasonably
required by the Collateral Agent, by a search prepared by a title
company or licensed abstractor or by other evidence satisfactory to the
Collateral Agent, that there has not been filed with respect to such
Mortgaged Property any mechanics' or other lien or instrument for the
retention of title in respect of any part of the Work not discharged of
record or bonded to the reasonable satisfaction of the Collateral
Agent;
(vi) there shall be no Default or Event of Default that has occurred
and is continuing;
(vii) the request for any payment after the Work has been completed
shall be accompanied by a copy of any certificate or certificates
required by law to render occupancy of the improvements being rebuilt,
repaired or restored legal; and
(viii) after commencing the Work, the Borrower shall, and shall
cause the applicable Subsidiary to, continue to perform the Work
diligently and in good faith to completion in accordance with the
approved plans and specifications.
Upon completion of the Work and payment in full therefor, the Collateral Agent
will disburse to the Borrower or the applicable Subsidiary the amount of any
Insurance Proceeds or Condemnation Proceeds then or thereafter in the hands of
the Collateral Agent on account of the Casualty or Taking that necessitated such
Work to be applied (x) to prepay the Obligations, with any excess being retained
by the Borrower or the applicable Subsidiary, or (y) to be reinvested in the
Borrower's or Subsidiary's principal lines of business within 180 days after the
receipt thereof.
(f) Notwithstanding any other provisions of this Section 5.12, if
the Borrower or the applicable Subsidiary shall have elected to replace a
Mortgaged Property as contemplated in paragraphs (c) and (d) above, all
Condemnation Proceeds or Insurance Proceeds held by the Collateral Agent in
connection therewith shall be applied to prepay the Obligations if (i) the
Borrower notifies the Collateral Agent and the Administrative Agent that it or
the applicable Subsidiary does not intend to replace the related Mortgaged
Property, (ii) a Responsible Officer of the Borrower shall not have notified the
Administrative Agent and the Collateral Agent in writing that the Borrower or
the applicable Subsidiary has acquired or has entered into a binding contract to
acquire land upon which it will construct the replacement property within 180
days after the related Condemnation or (iii) the Borrower shall have not
notified the Administrative Agent and the Collateral Agent in writing that it or
the applicable Subsidiary has begun construction of the replacement structures
within one year after the related Condemnation or Condemnation.
(g) Nothing in this Section 5.12 shall prevent the Collateral Agent
from applying at any time all or any part of the Insurance Proceeds or
Condemnation Proceeds to the curing of any Event of Default under this
Agreement.
(h) The execution of a Mortgage by any Subsidiary shall be deemed to
be an acknowledgment and acceptance of the provisions of this Section 5.12.
SECTION 5.13. Compliance with Laws . Comply with the requirements of
all laws, rules and regulations, and all judgments, writs, injunctions, decrees
and orders of any Governmental Authority, that are applicable to it or to any of
its properties, except where noncompliance could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.14. Information Regarding Collateral . (a) The Borrower
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's corporate name or in any trade name used to identify it in
the conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number. The Borrower agrees, with
respect to any change referred to in the preceding sentence, to cooperate with
the Administrative Agent to make all filings under the Uniform Commercial Code
or otherwise that are required (including filing of a name change with the
United States Patent and Trademark Office and the United States Copyright
Office) in order for the Administrative Agent to continue at all times following
such change to have a valid, legal and perfected security interest in all the
Collateral. The Borrower also agrees promptly to notify the Administrative Agent
if any material portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.04, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer of the Borrower (i) setting forth the
information required pursuant to Section 2 of the Perfection Certificate or
confirming that there has been no change in such information since the date of
the Perfection Certificate delivered on the Closing Date or the date of the most
recent certificate delivered pursuant to this Section and (ii) certifying that
all Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations, including
all refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record or delivered to the Administrative Agent
for filing in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interests under the Security Agreement for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period).
SECTION 5.15. Delivery of Post-Closing Leasehold Mortgage . Within
90 days following the execution of the Tennessee Build-to-Suit Lease listed on
Schedule 3.20(b), (i) a Mortgage relating to such leasehold substantially in the
form of Exhibit G-2 and such other Security Documents relating thereto, in form
and substance reasonably satisfactory to the Lenders, shall have been duly
executed by the parties thereto and delivered to the Collateral Agent and shall
be in full force and effect, (ii) such Mortgaged Property shall not be subject
to any Lien other than those permitted under Section 6.02 and those exceptions
to title reasonably acceptable to the Collateral Agent and its counsel and
listed in the loan title insurance policy, (iii) each of such Security Documents
shall have been filed and recorded in the recording office as specified on
Schedule 3.19(d) (or a lender's title insurance policy, in form and substance
reasonably acceptable to the Collateral Agent, insuring the lien of such
Security Document as a first lien on the Mortgaged Property (subject to any Lien
permitted by Section 6.02) shall have been received by the Collateral Agent)
and, in connection therewith, the Collateral Agent shall have received evidence
reasonably satisfactory to it of each such filing and recordation and (iv) the
Collateral Agent shall have received such other documents, including a policy or
policies of title insurance issued by a nationally recognized title insurance
company, together with such endorsements, coinsurance and reinsurance as may be
reasonably requested by the Collateral Agent and the Lenders, insuring the
Mortgage as a valid first leasehold lien on the Mortgage Property free of Liens
other than those permitted under Section 6.02, together with such surveys,
abstracts, appraisals, landlords' consents, estoppels and legal opinions as may
be reasonably requested by the Collateral Agent or the Lenders.
SECTION 5.16. Delivery of Post-Closing Certificates of Occupancy .
Within 120 days following the Closing Date, the Administrative Agent shall have
received for each Mortgaged Property the following: (A) a copy of the original
permanent or temporary certificate of occupancy, if any, issued upon completion
of each Mortgaged Property (or any amendment issued upon completion of any
alteration) by the appropriate Governmental Authority, (B) a letter from an
appropriate Government Authority stating that at the time of construction
certificates of occupancy were not required for each such Mortgaged Property for
which a certificate as described above has not been delivered or, if reasonably
requested by the Administrative Agent or Collateral Agent, suitable evidence of
the date of construction of each improvement on such Mortgaged Property or (C)
other appropriate evidence of authorized use.
SECTION 5.17. Delivery of Post-Closing Intellectual Property
Schedules to the Security Agreement . Within 10 days following the Closing Date,
the Administrative Agent shall have received from the Borrower Schedule II to
the Security Agreement. Within 30 days following the Closing Date, the
Administrative Agent shall have received from the Borrower Schedules III through
VI to the Security Agreement.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in full
and all Letters of Credit have been canceled or have expired and all amounts
drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, and will not cause or
permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness . Incur, create, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date hereof and set
forth on Schedule 6.01(a);
(b) Indebtedness the net proceeds of which are used substantially
concurrently to refinance Indebtedness described in subparagraph
(a), (e), (h) or (l) so long as (i) such refinancing Indebtedness is
in an aggregate principal amount not greater than the aggregate
principal amount of the Indebtedness being refinanced plus the
amount of any premiums required to be paid thereon and fees and
expenses associated therewith, (ii) such Indebtedness has a later or
equal final maturity and a longer or equal weighted average life
than the Indebtedness being refinanced, (iii) the interest rate
applicable to such Indebtedness shall be a market interest rate as
of the time of the incurrence thereof and (iv) each of the
covenants, events of default and other provisions thereof (including
any Guarantees thereof and, if the Indebtedness being refinanced is
subordinated, the subordination provisions thereof) shall be no less
favorable to the Lenders than those contained in the Indebtedness
being refinanced unless each of such provisions is approved in
writing by the Required Lenders;
(c) Indebtedness created hereunder and under the other Loan Documents;
(d) the Subordinated Notes;
(e) Indebtedness consisting of purchase money Indebtedness or Capital
Lease Obligations incurred in the ordinary course of business after
the Closing Date to finance Capital Expenditures, PROVIDED that
(i) a description of the assets financed thereby shall have been
furnished to the Administrative Agent for any assets for which the
purchase price is greater than $2,000,000 and (ii) the aggregate
principal amount of any Indebtedness or Capital Lease Obligations
incurred pursuant to this paragraph (f) outstanding at any time
shall not exceed $20,000,000;
(f) intercompany loans and advances permitted by Section 6.04(c);
(g) Guarantees in respect of the Indebtedness described in paragraphs
(a) through (f) above;
(h) Indebtedness under the Bond Documents not exceeding in the
aggregate at any one time $8,600,000;
(i) Hedging Agreements;
(j) ordinary course workers compensation related surety bond
Guarantees, letters of credit, and promissory notes;
(k) Guarantees with respect to surety, appeal, performance and return of
money bonds and other similar obligations incurred in the ordinary
course of business not exceeding in the aggregate at any one time
$5,000,000;
(l) Indebtedness incurred by JAIX Leasing, PROVIDED that such Indebtedness
is not Guaranteed by, or recourse to the assets of, the Borrower or any
other Subsidiary (except any subsidiary of JAIX Leasing);
(m) unsecured Indebtedness in addition to that permitted by paragraphs (a)
through (l) above in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding, so long as such Indebtedness is
created under agreements or instruments imposing covenants on the
Borrower and the Subsidiaries no less favorable to them than the
covenants imposed under this Agreement ;
(n) the Imperial Earn-Out Obligation in an aggregate principal amount
at any time outstanding not exceeding $4,000,000; and
(o) Indebtedness of any person acquired as a Permitted Acquisition pursuant
to Section 6.05(a)(v); 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 aggregate principal amount of Indebtedness
permitted by this clause (o) shall not exceed $10,000,000 at any time
outstanding.
SECTION 6.02. Liens . Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth on Schedule 6.02(a) (and any
extensions, renewals, replacements or refinancing thereof, PROVIDED
that such Liens as so extended, renewed, replaced or refinanced shall
secure only those obligations which they secure on the date hereof and
shall not extend to any other property or assets of the Borrower or any
Subsidiary);
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary (except any property or
asset acquired in connection with a Permitted Acquisition), PROVIDED
that (i) such Lien is not created in contemplation of or in
connection with such acquisition, (ii) such Lien does not apply to
any other property or assets of the Borrower or any Subsidiary and
(iii) such Lien does not (A) materially interfere with the use,
occupancy and operation of any Mortgaged Property, (B) materially
reduce the fair market value of such Mortgaged Property but for such
Lien or (C) result in any material increase in the cost of
operating, occupying or owning or leasing such Mortgaged Property;
(d) any Lien existing on any property or asset of any person acquired
as a Permitted Acquisition and 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 person becoming a
Subsidiary, (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 such
person becomes a Subsidiary (and any extensions, renewals,
replacements or refinancing thereof, PROVIDED that such Liens as so
extended, renewed, replaced or refinanced shall secure only those
obligations which they secure on the date hereof and shall not
extend to any other property or assets of the Borrower or any
Subsidiary);
(e) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03;
(f) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's, lessor's or other like Liens arising in the ordinary course
of business and securing obligations that are not due and payable or
which are being contested in compliance with Section 5.03;
(g) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and
other social security laws or regulations;
(h) deposits to secure the performance of bids, trade contracts (other than
for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of
business;
(i) zoning restrictions, easements, rights-of-way, restrictions on use of
real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(j) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of
improvements, constructed) by the Borrower or any Subsidiary,
PROVIDED that (i) such security interests secure Indebtedness
permitted by Section 6.01(e), (ii) such security interests are
incurred, and the Indebtedness secured thereby is created, within
90 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 85% of the lesser of
the cost or the fair market value of such real property,
improvements or equipment at the time of such acquisition (or
construction) and (iv) such security interests do not apply to any
other property or assets of the Borrower or any Subsidiary;
(k) attachment or judgment Liens so long as the claims secured thereby do
not exceed $1,000,000 in the aggregate and are being contested in good
faith pursuant to appropriate proceedings;
(l) Liens to secure Capital Lease Obligations permitted by Section 6.01(e),
PROVIDED that such Liens do not extend to any other property or assets
of the Borrower or any Subsidiary;
(m) Liens on the assets of JAIX Leasing, PROVIDED that such Liens do not
extend to the assets of the Borrower or any other Subsidiary (other
than any subsidiary of JAIX Leasing); and
(n) Liens arising in favor of an Issuing Bank under the Bond Documents in
bonds issued thereunder which are repurchased with the proceeds of an
L/C Disbursement and held in the Borrower's or a Guarantor's name
subject to a pledge in favor of the Issuing Bank until such bonds are
successfully remarketed, PROVIDED that each Issuing Bank agrees to hold
any such Lien for and on behalf of the Administrative Agent and each of
the Lenders.
SECTION 6.03. Sale and Lease-Back Transactions . Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred, PROVIDED that the Borrower
and the Subsidiaries may enter into any such transaction to the extent the
Capital Lease Obligation and Liens associated therewith would be permitted by
Sections 6.01(e) and 6.02(l), respectively, or Section 6.02(m).
SECTION 6.04. Investments, Loans and Advances . Except for
investments, loans or advances made by JAIX Leasing or any subsidiary thereof,
hold or acquire any capital stock, evidences of indebtedness or other securities
of, make or permit to exist any loans or advances to, or make or permit to exist
any investment or any other interest in, any other person, except:
(a) investments by the Borrower existing on the date hereof in the capital
stock of the Subsidiaries, other investments existing on the date
hereof and identified on Schedule 6.04(a) and investments by the
Borrower or any Subsidiary in any Guarantor;
(b) Permitted Investments;
(c) investments, loans or advances made by any Loan Party to any other Loan
Party, PROVIDED that any such loans or advances are evidenced by an
Intercompany Note pledged to the Collateral Agent pursuant to the
Pledge Agreement for the benefit of the Secured Parties;
(d) investments, loans or advances by any Loan Party in or to JAIX Leasing
in an aggregate amount not to exceed $3,000,000 in any calendar year;
PROVIDED, HOWEVER, that (A) any such loans or advances are evidenced by
an Intercompany Note pledged to the Collateral Agent pursuant to the
Pledge Agreement for the benefit of the Secured Parties, and (B) no
Default or Event of Default shall have occurred and be continuing;
(e) investments consisting of non-cash consideration received in
connection with a sale of assets permitted by Section 6.05(b);
(f) investments made as Capital Expenditures permitted by Section 6.09;
(g) investments not otherwise permitted above so long as the amount of such
investments does not exceed $10,000,000 in the aggregate at any time
outstanding;
(h) loans and advances to employees and officers of the Borrower or
any of the Subsidiaries for travel, entertainment and relocation
expenses in the ordinary course of business in an aggregate principal
amount outstanding at any one time not to exceed $2,000,000; and
(i) Permitted Acquisitions pursuant to Section 6.05(a)(v).
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions . (a) In the case of the Borrower or any Subsidiary (other than
JAIX Leasing or any subsidiary thereof), 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) assets constituting all or substantially all the assets
of the Borrower (whether now owned or hereafter acquired) or less than all the
capital stock of any Subsidiary (other than JAIX Leasing), or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or
substantially all the assets of any other person, except that:
(i) the Borrower and any Subsidiary may purchase and sell
inventory and sell scrap, obsolete or worn out assets in the
ordinary course of business;
(ii) the Borrower and any wholly owned Domestic Subsidiary may
purchase, lease or otherwise acquire all or substantially all of the
assets of any other wholly owned Domestic Subsidiary;
(iii) any Subsidiary may merge into any third party in an
Asset Sale permitted by Section 6.05(b);
(iv) if at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred
and be continuing (x) any wholly owned Subsidiary may merge into the
Borrower in a transaction in which the Borrower is the surviving
corporation and (y) any wholly owned Subsidiary may merge into or
consolidate with any other wholly owned Domestic Subsidiary in a
transaction in which the surviving entity is a wholly owned Domestic
Subsidiary and no person other than the Borrower or a wholly owned
Domestic Subsidiary receives any consideration; and
(v) the Borrower or any Subsidiary may make acquisitions
("PERMITTED ACQUISITIONs") of not less than 100% of the outstanding
capital stock of any person or of substantially all the assets and
business of any person; PROVIDED that (i) after giving effect to
such acquisition, the Revolving Credit Commitments, as reduced by
the Revolving Credit Exposure, are equal to or greater than
$40,000,000, (ii) the Administrative Agent shall have received one
or more environmental assessment reports in form and substance and
from an independent environmental consulting firm satisfactory to
the Administrative Agent, with respect to the acquired person and
its properties and (iii) the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer certifying
that at the time of and immediately after giving effect to such
Permitted Acquisition: (A) the acquired person is engaged in
substantially the same business as the Borrower or any Subsidiary or
another business reasonably related or incidental thereto, (B) in
the case of an acquisition of capital stock, such acquisition was
not preceded by an unsolicited tender offer for such capital stock
by the Borrower or any Affiliate, (C) such acquisition has been
approved by the board of directors of the acquired person prior to
the commencement of any tender offer or the acquisition by the
Borrower and any acquiring Subsidiary of any shares of capital stock
thereof and such approval has not been withdrawn or revoked, (D) at
the time of and after giving effect to such acquisition, no Event of
Default or Default has occurred and is continuing, and (E) the
Borrower shall be in compliance on a pro forma basis with the
covenants set forth in Sections 6.10, 6.11 and 6.12 as of the last
day of the fiscal quarter immediately preceding the date of the
acquisition (the "PRO FORMA DATE"), as if the acquisition had
occurred on the first day of the four fiscal quarter period ending
on the Pro Forma Date; PROVIDED FURTHER that the adjustments and
calculations set forth in the certificate delivered pursuant to
clause (iii) above shall be based on assumptions and otherwise in
form and substance satisfactory to the Administrative Agent.
(b) Neither the Borrower nor any Subsidiary (other than JAIX Leasing
or any subsidiary thereof) shall engage in any Asset Sale otherwise permitted
under paragraph (a) above unless (i) such Asset Sale is for consideration at
least 80% of which is cash, (ii) such consideration is at least equal to the
fair market value of the assets being sold, transferred, leased or disposed of
and (iii) the fair market value of all assets sold, transferred, leased or
disposed of pursuant to this paragraph (b) shall not exceed (i) $30,000,000 in
any fiscal year or (ii) $50,000,000 in the aggregate. Notwithstanding the
foregoing, the preceding sentence shall not apply to any sale or other
disposition of all or any portion of the capital stock of JAIX Leasing.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability
of Subsidiaries to Pay Dividends . (a) In the case of the Borrower or any
Subsidiary (other than JAIX Leasing or any subsidiary thereof), declare or pay,
directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, with respect to any shares of its capital stock or directly
or indirectly redeem, purchase, retire or otherwise acquire for value (or permit
any Subsidiary to purchase or acquire) any shares of any class of its capital
stock or set aside any amount for any such purpose; PROVIDED, HOWEVER, that
(i) any Subsidiary may declare and pay dividends or make other
distributions to the Borrower or to any Domestic Subsidiary (or, in
the case of a Foreign Subsidiary, to another Foreign Subsidiary)
that is such Subsidiary's parent;
(ii) the Borrower or any Subsidiary may declare and pay dividends, pro
rata to its stockholders, solely in shares of its common stock; and
(iii) the Borrower may purchase, redeem, retire or otherwise acquire
any shares of any class of its capital stock for aggregate
consideration not to exceed $10,000,000 in cash.
(b) Permit its subsidiaries (other than JAIX Leasing or any subsidiary
thereof) to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
such subsidiary to (i) pay any dividends or make any other distributions on its
capital stock or any other interest or (ii) make or repay any loans or advances
to the Borrower or any subsidiary that is the parent of such subsidiary, except
for encumbrances and restrictions that (A) arise under the Loan Documents or the
JAIX Loan Agreement or (B) existed prior to the time such subsidiary became a
Subsidiary and were not incurred in contemplation thereof or in connection
therewith.
SECTION 6.07. Transactions with Affiliates . Sell or transfer any property
or assets to, or purchase or acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except (a) that
the Borrower or any Subsidiary may engage in any of the foregoing transactions
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, (b) for transactions between
and among Loan Parties, (c) pursuant to the JAIX Tax Sharing Agreement and (d)
transfers of rail cars to JAIX Leasing at cost. Notwithstanding the foregoing,
the preceding sentence shall not apply to any transaction between JAIX Leasing
and any subsidiary thereof.
SECTION 6.08. Other Indebtedness and Agreements . (a) Permit any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which any Indebtedness or preferred stock of
the Borrower or any Subsidiary is outstanding in an aggregate outstanding
principal amount in excess of $3,000,000, to the extent that any such waiver,
supplement, modification, amendment, termination or release would be adverse to
the Lenders in any material respect.
(b) Permit any waiver, supplement, modification, amendment, termination or
release of the Acquisition Agreement (i) on or prior to the Closing Date, to the
extent that any such waiver, supplement, modification, amendment, termination or
release would, in the reasonable judgment of any Lender, be adverse to the
interests of such Lender, without the consent of such Lender and (ii) after the
Closing Date, to the extent that any such waiver, supplement, modification,
amendment, termination or release would, in the reasonable judgment of the
Required Lenders, be adverse to the interest of the Lenders in any material
respect, without the consent of the Required Lenders.
(c) Make any distribution, whether in cash, property, securities or a
combination thereof, other than scheduled (or with respect to senior
indebtedness held by a person that is not an Affiliate of the obligor,
mandatory) payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of, or pay, or
offer or commit to pay, or directly or indirectly redeem, repurchase, retire or
otherwise acquire for consideration, or set apart any sum for the aforesaid
purposes, any Indebtedness for borrowed money (other than Intercompany
Indebtedness) of any Loan Party or any Subsidiary (other than JAIX Leasing or
any subsidiary thereof) in an outstanding principal amount exceeding $500,000,
except for (i) any refinancing of Indebtedness permitted by Section 6.01(b),
(ii) the refinancing of Indebtedness in connection with the consummation of the
Transactions, (iii) the prepayment, redemption or repurchase of Indebtedness in
an aggregate principal amount not to exceed $10,000,000, and (iv) the Loans.
(d) Enter into any waiver, supplement, modification, amendment,
termination or release of the JAIX Tax Sharing Agreement that would increase the
payments required to be made thereunder by any Loan Party to JAIX Leasing or
would, in the reasonable judgment of the Required Lenders, be adverse to the
interests of the Lenders in any material respect.
SECTION 6.09. Capital Expenditures . Incur Consolidated Capital
Expenditures in excess of (i) for the fiscal year ending December 31, 1999,
$25,000,000, and (ii) for any fiscal year ending after December 31, 1999,
$30,000,000 per year; PROVIDED, HOWEVER, that the amount of permitted Capital
Expenditures in any fiscal year ending after December 31, 2000, shall be
increased by the total amount of unused permitted Capital Expenditures for the
immediately preceding year (less an amount equal to any unused permitted Capital
Expenditures carried forward to such preceding year pursuant to this proviso).
SECTION 6.10. Total Debt Ratio . Permit the Total Debt Ratio as of
the last day of any fiscal quarter ending during any period set forth below
to be in excess of the ratio set forth below for such period:
PERIOD RATIO
------------------------------- -----------------
September 30, 1999 through and 4.00 to 1
including December 31, 1999
March 31, 2000 through and 3.75 to 1
including December 31, 2001
March 31, 2002 and thereafter 3.50 to 1
SECTION 6.11. Interest Coverage Ratio . Permit the ratio of (i)
Consolidated EBITDA minus Consolidated Capital Expenditures to (ii) Consolidated
Interest Expense for any four quarter period ending during any period set forth
below to be less than the ratio set forth below opposite such period:
PERIOD RATIO
------------------------------- -------------------
September 30, 1999 through and 1:50 to 1
including December 31, 2001
March 31, 2002 and thereafter 1:75 to 1
SECTION 6.12. Net Worth. Permit Consolidated Net Worth, as at any date of
determination, to be less than (i) $102,500,000 plus (ii) 50% of the cumulative
amount of positive Consolidated Net Income for each fiscal quarter ending after
the Closing Date.
SECTION 6.13. Bank Accounts . Establish or maintain any bank account or
similar account with any financial institution that is not a Lender, other than
(i) the accounts specified in Section 2 of the Perfection Certificate, (ii) the
Collection Deposit Accounts (as defined in the Security Agreement), (iii) any
deposit account used exclusively for payroll and (iv) any other accounts of the
Borrower or any Subsidiary so long as the aggregate amount on deposit in such
accounts does not exceed $500,000 at any time.
SECTION 6.14. Business of Borrower and Subsidiaries . Engage at any time
in any business or business activity other than the business currently conducted
by it and business activities reasonably complementary or incidental thereto.
SECTION 6.15. Fiscal Year . Change the end of its fiscal year from
December 31 to any other date.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("EVENTS OF
DEFAULT"):
(a) any representation or warranty of any Loan Party made or deemed
made in or in connection with any Loan Document or the borrowings or
issuances of Letters of Credit hereunder, or any representation, warranty,
statement or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant to
any Loan Document, shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any L/C Disbursement 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 by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or L/C Disbursement or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the
same shall become due and payable, and such default shall continue
unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance by
the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
the Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or
(d) above) and such default shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent or any Lender to
the Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $5,000,000 when and as the
same shall become due and payable, or (ii) fail to observe or perform any
other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trustee on its or their behalf
(with or without the giving of notice, the lapse of time or both) to
cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Subsidiary (other than any
Inactive Subsidiary), or of a substantial part of the property or assets
of the Borrower or any such Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any such Subsidiary or
for a substantial part of the property or assets of the Borrower or any
such Subsidiary or (iii) the winding-up or liquidation of the Borrower or
any such Subsidiary; and 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;
(h) the Borrower or any Subsidiary (other than any Inactive
Subsidiary) shall (i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any such
Subsidiary or for a substantial part of the property or assets of the
Borrower or any such Subsidiary, (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,
(vi) become unable, admit in writing its inability or fail generally to
pay its debts as they become due or (vii) take any action for the purpose
of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $3,000,000 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 effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Borrower or any
Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events,
could reasonably be expected to result in liability of the Borrower and
its ERISA Affiliates in an aggregate amount exceeding $3,000,000;
(k) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any
other Loan Party not to be, a valid, perfected, first priority (except as
otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results
from the failure of the Collateral Agent to maintain possession of
certificates representing securities pledged under the Pledge Agreement
and except to the extent that such loss is covered by a lender's title
insurance policy and the related insurer promptly after such loss shall
have acknowledged in writing that such loss is covered by such title
insurance policy;
(l) any Loan Document shall not be for any reason, or shall be
asserted by any Loan Party not to be, in full force and effect and
enforceable in accordance with its terms; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), 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 forthwith
the Commitments and (ii) declare the Loans then-outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding; and in any event
with respect to the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans
then-outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
In the event that any of the Bond Documents gives an Issuing Bank
the right to direct a bond trustee to cause an acceleration, redemption or
repurchase of bonds upon the occurrence of an Event of Default hereunder, each
Issuing Bank agrees to give such a direction in accordance with, and only in
accordance with, the direction of the Administrative Agent, which direction may
be given by the Administrative Agent at any time during the continuance of such
event and shall be given by the Administrative Agent at the request of the
Required Lenders.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Administrative
Agent and Collateral Agent on behalf of the Lenders and the Issuing Bank (for
purposes of this Article VIII, the Administrative Agent and the Collateral Agent
are referred to collectively as the "AGENTS"). Each of the Lenders and each
assignee of any such Lender, hereby irrevocably authorizes the Agents to take
such actions on behalf of such Lender or assignee or the Issuing Bank and to
exercise such powers as are specifically delegated to the Agents by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Issuing Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Issuing Bank all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender or the Issuing
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower pursuant to this Agreement as received by the Administrative Agent.
Without limiting the generality of the foregoing, the Agents are hereby
expressly authorized to execute any and all documents (including releases) with
respect to the Collateral and the rights of the Secured Parties with respect
thereto, as contemplated by and in accordance with the provisions of this
Agreement and the Security Documents. None of the Lenders identified herein as
Co-Agents shall have any separate duties, responsibilities, obligations or
authority as Co-Agents hereunder.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders (and such other Lenders as may be expressly required by Section
9.08) and, except as otherwise specifically provided herein, such instructions
and any action or inaction pursuant thereto shall be binding on all the Lenders.
Each Agent shall, in the absence of knowledge to the contrary, be entitled to
rely on any instrument or document believed by it in good faith to be genuine
and correct and to have been signed or sent by the proper person or persons.
Neither the Agents nor any of their respective directors, officers, employees or
agents shall have any responsibility to the Borrower or any other Loan Party on
account of the failure of or delay in performance or breach by any Lender or the
Issuing Bank of any of its obligations hereunder or to any Lender or the Issuing
Bank on account of the failure of or delay in performance or breach by any other
Lender or the Issuing Bank or the Borrower or any other Loan Party of any of
their respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each of the Agents may execute any and all
duties hereunder by or through agents or employees and shall be entitled to rely
upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders (and such other Lenders as may be expressly required
by Section 9.08).
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right 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 Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. The appointment of
any successor Agent shall be subject to the prior approval of the Borrower,
which approval shall not be unreasonably withheld. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their 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 an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its Commitments or, in the case of
Commitments that have been terminated, its outstanding Loans hereunder) of any
expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, that shall not have been reimbursed by the Borrower
and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such pro rata share,
from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by or asserted
against it in its capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower, PROVIDED
that no Lender shall be liable to an Agent or any such other indemnified person
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or wilful misconduct of such Agent or any of its directors,
officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents 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 Agents 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 or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices . 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:
(a) if to the Borrower, to it at Johnstown America Industries, Inc.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (212)
552-5658), with a copy to The Chase Manhattan Bank, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Issuing Bank, to it at Chase Manhattan Bank Delaware,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ ), with a copy to The Chase Manhattan Bank at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party 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 if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement . All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, 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 or any other Loan Document is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect . This Agreement shall become effective
when it shall have been executed by the Borrower and 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 permitted successors and assigns.
SECTION 9.04. Successors and Assigns . (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Borrower, the
Administrative Agent, the Issuing Bank or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); PROVIDED,
HOWEVER, that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund of a Lender, (x) the Borrower and the
Administrative Agent (and, in the case of any assignment of a Revolving Credit
Commitment, the Issuing Bank and the Swingline Lender) must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld) and (y) the amount of the Commitment or Loans 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 (or, if less, the entire remaining
amount of such Lender's Commitment or Loans, as applicable), (ii) the parties to
each such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500 and (iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and PROVIDED FURTHER that
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (g) or (h) of Article VII has
occurred and is continuing. Upon acceptance and recording pursuant to paragraph
(e) of this Section 9.04, from and after the effective date specified in each
Assignment and Acceptance, (A) 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 (B) 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 or the
remaining portion of an 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 2.14, 2.16, 2.20 and 9.05, as well as to
any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) 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, the Issuing Bank, the
Collateral 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, the Issuing Bank, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Swingline
Lender, the Issuing Bank and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders, the Issuing Bank and the Swingline Lender. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the
Swingline Lender, the Issuing Bank or the Administrative Agent sell
participations to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); PROVIDED, HOWEVER, 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, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16, 2.20 and 9.05 to the same extent as if they were Lenders, PROVIDED
that the Borrower shall not be required to reimburse the participating banks or
other entities pursuant to Section 2.14, 2.16, 2.20 or 9.05 in an amount in
excess of the amount that would have been payable thereunder to such Lender had
such Lender not sold such participation, and (iv) the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans or L/C
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate
at which interest is payable on the Loans, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans, increasing
or extending the Commitments, or releasing any Guarantor or all or any
substantial part of the Collateral (except as expressly permitted by the Loan
Documents)).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; PROVIDED that, prior to any such disclosure of any
Information, each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree to preserve the confidentiality of such Information on terms
substantially similar to, and, in any event, no less restrictive than those
applicable to the Lenders pursuant to Section 9.16.
(h) 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; 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. In
order to facilitate such an assignment, the Borrower shall, at the request of
the pledging or assigning Lender, duly execute and deliver to the pledging or
assigning Lender a promissory note or notes evidencing the Loans made to the
Borrower by the pledging or assigning Lender hereunder.
(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent,
the Issuing Bank and each Lender, and any attempted assignment without such
consent shall be null and void.
(j) In the event that Standard & Poor's Ratings Services, ▇▇▇▇▇'▇
Investors Service and ▇▇▇▇▇▇▇▇ BankWatch (or Best's Insurance Reports, for an
insurance company) shall, after the date that any Lender becomes a Revolving
Credit Lender, downgrade the long-term certificate of deposit ratings of such
Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or B, in the
case of a Lender that is an insurance company), then the Issuing Bank, shall
have the right, but not the obligation, at its own expense, upon notice to such
Lender and the Administrative Agent, to replace (or to request the Borrower to
use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Revolving
Credit Commitment to such assignee; PROVIDED, HOWEVER, that (i) no such
assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Issuing Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity . (a) The Borrower agrees to pay
all reasonable out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Swingline Lender in connection with
the syndication of the credit facilities provided for herein and the preparation
and administration of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent, the Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made or Letters of
Credit issued hereunder, including the reasonable fees, charges and
disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent,
the Collateral Agent and the Issuing Bank, and, in connection with any such
enforcement or protection, the reasonable fees, charges and disbursements of any
other counsel for the Administrative Agent, the Collateral Agent, the Issuing
Bank or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender and the Issuing Bank, each Affiliate of any of the
foregoing persons and each of their respective directors, trustees, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of
Letters of Credit, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence, Release or threatened Release
of Hazardous Materials on any of the Properties (as defined in Section 3.17
hereof), or any Environmental Claim related in any way to the Borrower or the
Subsidiaries; 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 wilful
misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or the Issuing Bank. All amounts due under this Section 9.05 shall be
payable on written demand therefor.
SECTION 9.06. Right of Setoff . If an Event of Default shall have
occurred and be continuing, each Lender 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 indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any or all the obligations
of the Borrower now or hereafter existing under this Agreement and other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. 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. Any Lender exercising its rights under this
Section 9.06 shall promptly notify the Borrower after such exercise.
SECTION 9.07. Applicable Law . THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment . (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document 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, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents 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 any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances.
(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; PROVIDED, HOWEVER, that
no such agreement (i) shall (A) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (B) increase or extend the Commitment or decrease
the Fees of any Lender without the prior written consent of such Lender, or (C)
amend or modify the pro rata sharing requirements of Section 2.17, or the
provisions of Section 9.04(i), the provisions of this Section or the definition
of the term "Required Lenders", or release any Guarantor or all or any
substantial part of the Collateral (except as expressly permitted by the Loan
Documents), without the prior written consent of each Lender affected thereby,
(ii) shall amend, modify or otherwise affect the rights or duties of any Agent,
the Issuing Bank or the Swingline Lender hereunder or under any other Loan
Document without the prior written consent of such Agent, the Issuing Bank or
the Swingline Lender, as applicable, or (iii) shall change the provisions of any
Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Revolving Loans, Tranche A Term Loans
or Tranche B Term Loans (as used in this Section, each a "CLASS" of Loans)
differently from the rights in respect of payments due to Lenders holding any
other Class of Loans without the prior written consent of Lenders holding a
majority of the aggregate outstanding principal amount of the Loans (or, if no
Revolving Loans are outstanding, the Revolving Credit Commitments) of the
adversely affected Class of Loans.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan
or participation in any L/C Disbursement, together with all fees, charges and
other amounts which are treated as interest on such Loan or participation in
such L/C Disbursement under applicable law (collectively the "CHARGES"), shall
exceed the maximum lawful rate (the "MAXIMUM RATE") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable in
respect of such Loan or participation hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or participation but were not payable as a result of the operation
of this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or participations or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.10. Entire Agreement . This Agreement, the Fee Letter and
the other Loan Documents constitute the entire contract between the parties
relative to the subject matter hereof. Any other previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto and thereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 9.11.
SECTION 9.12. Severability . In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts . 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, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. 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 are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process . (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, 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 shall be conclusive and 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, the Collateral Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against the Borrower or its properties in the courts of
any jurisdiction.
(b) The Borrower 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 or the other Loan
Documents in any New York State or Federal court. 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.
(c) 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 9.16. Confidentiality . The Administrative Agent, the
Collateral Agent, the Issuing Bank and each of the Lenders agrees to keep
confidential (and to use its best efforts to cause its respective officers,
directors, employees, affiliates, agents and representatives to keep
confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority, including the National Association of Insurance Commissioners, (c) to
the extent otherwise required by applicable laws and regulations or by any
subpoena or similar legal process, (d) in connection with any suit, action or
proceeding relating to the enforcement of its rights hereunder or under the
other Loan Documents or (e) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 9.16 or (ii)
becomes available to the Administrative Agent, the Issuing Bank, any Lender or
the Collateral Agent on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "INFORMATION" shall mean all
financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender based
on any of the foregoing) that are received from the Borrower and related to the
Borrower, any shareholder of the Borrower or any employee, customer or supplier
of the Borrower, other than any of the foregoing that were available to the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower, and which
are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential. The provisions of this
Section 9.16 shall remain operative and in full force and effect regardless of
the expiration and term of this Agreement.
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.
JOHNSTOWN AMERICA INDUSTRIES, INC.,
by
/S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
/S/▇▇▇▇▇ ▇. ▇▇▇▇
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Name:▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CHASE MANHATTAN BANK DELAWARE, as Issuing Bank,
by
/S/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
by
/S/▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
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Name:▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANKBOSTON, N.A.,
by
/S/▇▇▇▇ ▇▇▇▇▇▇▇
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Name:▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
COMERICA BANK,
by
/S/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CREDIT AGRICOLE INDOSUEZ,
by
/S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Senior Relationship Manager
by
/S/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President, Manager
FIRST NATIONAL BANK OF CHICAGO,
by
/S/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
FIRST UNION NATIONAL BANK,
by
/S/▇▇▇▇ ▇▇▇▇▇
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Name:▇▇▇▇ ▇▇▇▇▇
Title: Vice President
FLOATING RATE PORTFOLIO,
By: INVESCO Senior Secured Management, Inc. as attorney in fact,
by
/S/▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
LAUREL BANK,
by
/S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name:Vice President
Title: Commercial Services Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.,
by
/S/▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND II, INC.,
by
/S/▇▇▇▇ ▇▇▇▇▇▇▇
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Name:▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
NATIONAL BANK OF CANADA, a Canadian chartered bank,
by
/S/▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Manager
by
/S/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
NATIONAL CITY BANK,
by
/S/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
NATIONSBANK, N.A.,
by
/S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
THE NORTHERN TRUST COMPANY,
by
/S/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇ FLOATING RATE LIMITED LIABILITY COMPANY,
by
/S/▇▇▇▇▇ ▇. GOOD
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Name:Vice President
Title: ▇▇▇▇▇ ▇▇▇ & Farnham Incorporated,
as Advisor to the ▇▇▇▇▇ ▇▇▇
Floating Rate Limited
Liability Company
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST,
by
/S/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST,
by
/S/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
