EXHIBIT 99.1
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AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
▇▇▇▇▇▇ INDUSTRIAL GROUP, INC.,
THE GUARANTORS FROM TIME TO TIME PARTY HERETO,
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, AS AGENT
DATED AS OF FEBRUARY 25, 2002
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. THE CREDITS............................................................................2
Section 1.1. Revolving Credit.......................................................................2
(a) Generally..............................................................................2
(b) Revolving Loans........................................................................2
Section 1.2. Term Credit............................................................................3
Section 1.3. Letters of Credit......................................................................3
(a) General Terms..........................................................................3
(b) Applications...........................................................................4
(c) The Reimbursement Obligation...........................................................4
(d) The Participating Interests............................................................5
(e) Indemnification........................................................................6
(f) Change in Laws.........................................................................6
Section 1.4. Manner and Disbursement of Borrowings..................................................6
(a) Generally..............................................................................6
(b) Reimbursement Obligation...............................................................7
(c) Agent Reliance on Bank Funding.........................................................7
Section 1.5. Manner of Obtaining Letters of Credit..................................................7
Section 1.6. The Swing Line.........................................................................8
SECTION 2. INTEREST AND CHANGE IN CIRCUMSTANCES..................................................10
Section 2.1. Interest Rate Options.................................................................10
Section 2.2. Minimum Amounts.......................................................................11
Section 2.3. Computation of Interest...............................................................11
Section 2.4. Manner of Rate Selection..............................................................11
Section 2.5. Change of Law.........................................................................11
Section 2.6. Unavailability of Deposits or Inability to Ascertain Adjusted LIBOR...................12
Section 2.7. Taxes and Increased Costs.............................................................12
Section 2.8. Change in Capital Adequacy Requirements...............................................13
Section 2.9. Funding Indemnity.....................................................................14
Section 2.10. Lending Branch........................................................................14
Section 2.11. Lender's Duty to Mitigate.............................................................14
Section 2.12. Discretion of Lenders as to Manner of Funding.........................................15
Section 2.13. Replacement of Lender.................................................................15
Section 2.14. Default Rate..........................................................................16
SECTION 3. FEES, PREPAYMENTS, TERMINATIONS, APPLICATIONS AND NOTATIONS...........................16
Section 3.1. Fees..................................................................................16
Section 3.2. Voluntary Prepayments of Revolving Credit and Term Notes..............................18
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Section 3.3. Mandatory Prepayments.................................................................18
Section 3.4. Terminations of Revolving Credit Commitments..........................................19
Section 3.5. Place and Application of Payments.....................................................20
Section 3.6. Notations and Requests................................................................21
Section 3.7. Excess Revolving Credit...............................................................21
SECTION 4. COLLATERAL............................................................................22
Section 4.1. Collateral............................................................................22
Section 4.2. Guaranties............................................................................22
Section 4.3. Further Assurances....................................................................22
Section 4.4. Collections...........................................................................23
SECTION 5. DEFINITIONS; INTERPRETATION...........................................................23
Section 5.1. Definitions...........................................................................23
Section 5.2. Interpretation........................................................................36
Section 5.3. Change in Accounting Principles.......................................................36
SECTION 6. REPRESENTATIONS AND WARRANTIES........................................................36
Section 6.1. Organization and Qualification........................................................36
Section 6.2. Subsidiaries..........................................................................37
Section 6.3. Margin Stock..........................................................................37
Section 6.4. Financial Reports.....................................................................37
Section 6.5. Full Disclosure.......................................................................38
Section 6.6. Good Title............................................................................38
Section 6.7. Litigation and Other Controversies....................................................38
Section 6.8. Taxes.................................................................................38
Section 6.9. Approvals.............................................................................38
Section 6.10. Affiliate Transactions................................................................39
Section 6.11. Investment Company; Public Utility Holding Company....................................39
Section 6.12. ERISA.................................................................................39
Section 6.13. Compliance with Laws..................................................................39
Section 6.14. Other Agreements......................................................................39
Section 6.15. [Intentionally Omitted]...............................................................40
Section 6.16. [Intentionally Omitted]...............................................................40
Section 6.17. No Default............................................................................40
Section 6.18. Capital Structure.....................................................................40
SECTION 7. CONDITIONS PRECEDENT..................................................................41
Section 7.1. All Advances..........................................................................41
Section 7.2. Initial Advance.......................................................................42
Section 7.3. Initial Loans.........................................................................43
SECTION 8. COVENANTS.............................................................................43
Section 8.1. Maintenance of Business...............................................................43
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Section 8.2. Maintenance of Property...............................................................43
Section 8.3. Taxes and Assessments.................................................................44
Section 8.4. Insurance.............................................................................44
Section 8.5. Financial Reports.....................................................................44
Section 8.6. Interest Coverage Ratio...............................................................46
Section 8.7. Cash Flow Leverage Ratio..............................................................47
Section 8.8. EBITDA................................................................................47
Section 8.9. Fixed Charge Coverage Ratio...........................................................48
Section 8.10. Capital Expenditures..................................................................49
Section 8.11. Indebtedness..........................................................................49
Section 8.12. Liens.................................................................................49
Section 8.13. Investments, Loans, Advances and Guaranties...........................................51
Section 8.14. Leases................................................................................52
Section 8.15. Dividends and Certain Other Restricted Payments.......................................52
Section 8.16. Mergers, Consolidations and Sales.....................................................52
Section 8.17. Acquisitions..........................................................................53
Section 8.18. Maintenance of Subsidiaries...........................................................53
Section 8.19. Formation of Subsidiaries.............................................................53
Section 8.20. ERISA.................................................................................54
Section 8.21. Compliance with Laws..................................................................54
Section 8.22. Burdensome Contracts with Affiliates..................................................54
Section 8.23. Changes in Fiscal Year................................................................54
Section 8.24. Change in the Nature of Business......................................................54
Section 8.25. Use of Loan Proceeds..................................................................54
SECTION 8.26. [INTENTIONALLY DELETED]...............................................................55
Section 8.27. Net Worth.............................................................................55
Section 8.28. Bank Warrants.........................................................................55
Section 8.29. Class A Common Stock..................................................................55
Section 8.30. Issuance of Dilutive Equity...........................................................55
Section 8.31. Financial Advisor.....................................................................55
SECTION 9. EVENTS OF DEFAULT AND REMEDIES........................................................56
SECTION 10. THE AGENT.............................................................................59
Section 10.1. Appointment and Authorization.........................................................59
Section 10.2. Rights as a Lender....................................................................59
Section 10.3. Standard of Care......................................................................59
Section 10.4. Costs and Expenses....................................................................60
Section 10.5. Indemnity.............................................................................60
Section 10.6. Interest Rate Hedging Arrangements....................................................60
SECTION 11. JOINT AND SEVERAL LIABILITY AND GUARANTIES............................................61
Section 11.1. Joint and Several Liability and Guaranties............................................61
Section 11.2. Guaranty Unconditional................................................................61
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Section 11.3. Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances...........62
Section 11.4. Waivers...............................................................................62
Section 11.5. Limit on Recovery.....................................................................63
Section 11.6. Stay of Acceleration..................................................................63
Section 11.7. Benefit to Guarantors.................................................................63
Section 11.8. Guarantor Covenants...................................................................63
SECTION 12. MISCELLANEOUS.........................................................................63
Section 12.1. Holidays..............................................................................63
Section 12.2. No Waiver, Cumulative Remedies........................................................63
Section 12.3. Waivers, Modifications and Amendments.................................................64
Section 12.4. Costs and Expenses....................................................................64
Section 12.5. Documentary Taxes.....................................................................64
Section 12.6. Survival of Representations...........................................................65
Section 12.7. Survival of Indemnities...............................................................65
Section 12.8. Notices...............................................................................65
Section 12.9. Headings..............................................................................65
Section 12.10. Severability of Provisions............................................................65
Section 12.11. Counterparts..........................................................................66
Section 12.12. Binding Nature, Governing Law, Etc....................................................66
Section 12.13. Entire Understanding..................................................................66
Section 12.14. Participations........................................................................66
Section 12.15. Assignment Agreements.................................................................66
Section 12.16. Confidentiality.......................................................................67
Section 12.17. Release of Claims.....................................................................67
Signature...................................................................................................69
Exhibit A -- Revolving Credit Note
Exhibit B -- Term Note
Exhibit C -- [Intentionally Deleted]
Exhibit D -- Swing Line Note
Exhibit E -- Compliance Certificate
Attachment to Compliance Certificate
Exhibit F -- Notice of Payment Request
Exhibit G -- Guaranty
Schedule 1 -- Existing Letter of Credit
Schedule 6.2 -- Subsidiaries
Schedule 6.7 -- Litigation
Schedule 8.12 -- Other Liens
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▇▇▇▇▇▇ INDUSTRIAL GROUP, INC.
AMENDED AND RESTATED
CREDIT AGREEMENT
This Amended and Restated
Credit Agreement is entered into as of
February 25, 2002, by and among ▇▇▇▇▇▇ Industrial Group, Inc., a Georgia
corporation (the "BORROWER"), each of the Subsidiaries from time to time
becoming a party hereto, as Guarantors, each of the financial institutions which
are or hereafter become party hereto (hereinafter referred to as a "LENDER" and
collectively as the "LENDERS"), and ▇▇▇▇▇▇ Trust and Savings Bank in its
capacity as agent hereunder (hereinafter referred to as the "AGENT").
R E C I T A L S
A. The Borrower has requested that the Lenders continue to extend
credit to the Borrower.
B. The Borrower, the Guarantors, the Lenders and the Agent are
currently party to that certain
Credit Agreement dated as of May 29, 1998 (as
amended, the "PREVIOUS
CREDIT AGREEMENT"). The Borrower hereby requests that
certain amendments be made to the Previous
Credit Agreement and, for the sake of
clarity and convenience, that the Previous
Credit Agreement be restated as so
amended. As part of such amendments to the Previous
Credit Agreement, the
Borrower has requested that the Lenders refinance the Loans thereunder (the
"PREVIOUS LOANS"), extend the maturity of the credit facility provided thereby,
and restate the Term A Loan and Term B Loan facilities thereunder as a single
Term Loan facility all on and subject to the terms and conditions set forth
below. This Agreement shall become effective, and shall amend and restate the
Previous
Credit Agreement, upon the execution of this Agreement by the Borrower,
the Guarantors, the Agent and the Lenders and the satisfaction of the conditions
precedent contained in Section 7 hereof; and from and after the Effective Date,
(i) all references made to the Previous
Credit Agreement in the Loan Documents
or in any other instrument or document shall, without more, be deemed to refer
to this Amended and Restated Credit Agreement and (ii) the Previous Credit
Agreement shall be deemed amended and restated in its entirety hereby.
C. The Lenders, upon acceptance of this Agreement in writing and
satisfaction of the conditions precedent contained in Section 7 hereof, will
continue to lend monies and/or make advances, extensions of credit or other
financial accommodations to, on behalf of or for the benefit of the Borrower
pursuant hereto, and (i) any Previous Loans which were Revolving Loans under the
Previous Credit Agreement and which are not repaid on the Effective Date will
automatically, and without further action on the part of the Lenders or the
Borrower, become Revolving Loans under this Agreement and be evidenced by the
Revolving Credit Notes issued under this Agreement, and (ii) any Previous Loans
which were Term A Loans or Term B Loans under the Previous Credit Agreement and
are not repaid on the Effective Date will automatically, and without further
action on the part of the Lenders or the Borrower, become Term Loans under this
Agreement and be evidenced by the Term Notes issued under this Agreement. Any
Previous Loans under the Previous Credit Agreement which are repaid on the
Effective Date will be paid
to the holders of the Notes issued under the Previous Credit Agreement ratably
according to their interests therein; PROVIDED that Swing Loans outstanding on
the Effective Date will become Swing Loans under this Agreement and be evidenced
by the Swing Line Notes issued under this Agreement.
NOW, THEREFORE, in consideration of the recitals set forth above, which
by this reference are incorporated into this Agreement set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and subject to the terms and conditions hereof and on the
basis of the representations and warranties herein set forth, the Borrower, the
Guarantors, the Agent and the Lenders hereby agree to the following:
SECTION 1. THE CREDITS.
SECTION 1.1. REVOLVING CREDIT.
(a) GENERALLY. Subject to the terms and conditions hereof, each
Lender severally agrees to extend credit to the Borrower on a revolving basis
under the revolving credit facility described in this Section 1.1 (the
"REVOLVING CREDIT") which may be availed of by the Borrower from time to time,
and borrowings thereunder may be repaid and used again, during the period from
the date hereof to and including the Termination Date, at which time the
commitments of the Lenders to extend credit under the Revolving Credit shall
expire, PROVIDED that, as set forth in the recitals hereto, the making of the
initial Revolving Loans and Letters of Credit on the Effective Date shall not
require that the Lenders advance additional funds but instead shall represent a
continuation of the Revolving Loans and Letters of Credit outstanding under the
Previous Credit Agreement. The maximum amount of the Revolving Credit which each
Lender agrees to extend to the Borrower, taken together, shall not exceed its
Revolving Credit Commitment. The Revolving Credit may be utilized by the
Borrower in the form of Revolving Loans and Letters of Credit, all as more fully
hereinafter set forth; PROVIDED, HOWEVER, that the aggregate amount of Revolving
Loans, L/C Obligations and Swing Loans outstanding at any one time from the
Borrower shall not exceed the lesser of (x) the Available Revolving Credit
Commitments in effect at such time or (y) the Borrowing Base as then determined
and computed. For all purposes of this Agreement, where a determination of the
unused or available amount of the Revolving Credit Commitments is necessary, the
Revolving Loans and L/C Obligations shall be deemed to utilize the Revolving
Credit Commitments then in effect. The obligations of the Lenders hereunder are
several and not joint, and no Lender shall under any circumstances be obligated
to extend credit under the Revolving Credit in excess of its Revolving Credit
Commitment.
(b) REVOLVING LOANS. Subject to the terms and conditions hereof, the
Revolving Credit may be availed of by the Borrower in the form of loans in U.S.
Dollars (individually a "REVOLVING LOAN" and collectively the "REVOLVING
LOANS"). Each Revolving Loan by the Lenders shall be in a minimum amount of
$500,000 or such greater amount which is an integral multiple of $100,000,
except to the extent Section 2 provides otherwise in the case of LIBOR Portions.
Each Revolving Loan shall be made pro rata by the Lenders in accordance with the
amounts of their respective Revolver Percentages. Each advance made by a Lender
of its pro rata share of each Revolving Loan shall be evidenced by the same
Revolving Credit Note of the Borrower (individually, for each Lender, its
"REVOLVING CREDIT NOTE" and collectively, for all the
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Lenders, their "REVOLVING CREDIT NOTES"), jointly and severally, payable to the
order of such Lender in the amount of its Revolving Credit Commitment, with each
Revolving Credit Note to be in the form (with appropriate insertions) attached
hereto as Exhibit A. Each Revolving Credit Note shall be dated the date of
issuance thereof, be expressed to bear interest as provided in Section 2 hereof
and be expressed to mature on the Termination Date. Without regard to the
principal amount of each Revolving Credit Note stated on its face, the actual
principal amount at any time outstanding and owing by the Borrower on account
thereof shall be the sum of all advances then or theretofore made thereon less
all payments of principal actually received.
SECTION 1.2. TERM CREDIT. Subject to all of the terms and conditions
hereof, the Lenders severally agree to make a term loan in U.S. Dollars (the
"TERM LOAN") to the Borrower under the term credit facility set forth in this
Section 1.2 in an amount not to exceed their Term Loan Commitments, PROVIDED
that the making of the Term Loan shall not require that the Lenders advance
additional funds but instead shall represent a continuation of the Term A Loans
and Term B Loans outstanding under the Previous Credit Agreement. The Term Loan
shall be disbursed in a single advance made on the Effective Date, at which time
the commitments of the Lenders to make the Term Loan shall expire. Each Lender
shall advance a pro rata share of the Term Loan in accordance with the amounts
of its respective Term Percentage. Each Lender's pro rata share of the Term Loan
shall be evidenced by a Term Note of the Borrower (individually a "TERM NOTE"
and collectively the "TERM NOTES") payable to the order of such Lender in the
amount of its pro rata share of the Term Loan, each Term Note to be in the form
(with appropriate insertions) attached hereto as Exhibit B. Each Term Note shall
mature in monthly installments, commencing on February 28, 2002 and continuing
on the last day of each month occurring thereafter to and including June 30,
2003, with the principal installments on the Term Notes to aggregate $235,000
for the installment due on February 28, 2002, $400,000 per installment
thereafter and through and including April 30, 2002 and $500,000 per installment
thereafter and through and including June 30, 2003, and with a final principal
payment on all the Term Notes due on July 1, 2003 in an amount equal to all
principal and interest not sooner paid, and with the amount of each payment due
on the Term Note held by each Lender to be equal to such Lender's Term
Percentage of such payment.
SECTION 1.3. LETTERS OF CREDIT.
(a) GENERAL TERMS. Subject to the terms and conditions hereof, as
part of the Revolving Credit, the Agent shall issue standby or commercial
letters of credit (each a "LETTER OF CREDIT") for the account of the Borrower
(whether for its own account individually or also for the account of any
Subsidiary) in U.S. Dollars in an aggregate undrawn face amount up to the amount
of the L/C Sublimit as then in effect; PROVIDED, HOWEVER, that the aggregate L/C
Obligations at any time outstanding shall not exceed the difference between (x)
the lesser of (i) the Available Revolving Credit Commitments in effect at such
time or (ii) the Borrowing Base as then determined and computed and (y) the
aggregate principal amount of Revolving Loans and Swing Loans then outstanding.
Each Letter of Credit shall be issued by the Agent, but each Lender shall be
obligated to reimburse the Agent for its Revolver Percentage of the amount of
each drawing thereunder and, accordingly, the undrawn face amount of each Letter
of Credit shall constitute usage of the Revolving Credit Commitment of each
Lender pro rata in accordance with each Lender's Revolver Percentage.
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(b) APPLICATIONS. At any time before the Termination Date, the Agent
shall, at the request of the Borrower, issue one or more Letters of Credit for
the account of the Borrower (whether for its own account individually or also
for the account of any Subsidiary), in a form satisfactory to the Agent, in an
aggregate face amount as set forth above, upon the receipt of an application for
the Letter of Credit in the form customarily prescribed by the Agent duly
executed by the Borrower for whose account such Letter of Credit was issued
(each an "APPLICATION"). Each Letter of Credit issued hereunder which is a
standby letter of credit shall expire not later than the earlier of (i) twelve
(12) months from the date of issuance and each renewal or (ii) five (5) Business
Days prior to the Termination Date. Each Letter of Credit issued hereunder which
is a commercial letter of credit shall expire not later than the earlier of (i)
one hundred eighty (180) days from the date of issuance and each renewal or (ii)
five (5) Business Days prior to the Termination Date. Notwithstanding anything
contained in any Application to the contrary (i) the Borrower shall be liable
for all obligations in respect of each Letter of Credit, (ii) the Borrower's
obligation to pay fees in connection with each Letter of Credit shall be as
exclusively set forth in Section 3.1(b) hereof, (iii) except during the
continuance of an Event of Default, the Agent will not call for the funding by
the Borrower of any amount under a Letter of Credit, or any other form of
collateral security for the Borrower's obligations in connection with such
Letter of Credit, before being presented with a drawing thereunder, and (iv) if
the Agent is not timely reimbursed for the amount of any drawing under a Letter
of Credit on the date such drawing is paid, the Borrower's obligation to
reimburse the Agent for the amount of such drawing shall bear interest (which
the Borrower hereby promises to pay) from and after the date such drawing is
paid at a rate per annum equal to the sum of 2-3/4% plus the Domestic Rate from
time to time in effect. The Agent will promptly notify the Lenders of each
issuance by it of a Letter of Credit. If the Agent issues any Letters of Credit
with expiration dates that are automatically extended unless the Agent gives
notice that the expiration date will not so extend beyond its then scheduled
expiration date, the Agent will give such notice of non-renewal before the time
necessary to prevent such automatic extension if before such required notice
date (i) the expiration date of such Letter of Credit if so extended would be
after the Termination Date, (ii) the Revolving Credit Commitments have been
terminated or (iii) an Event of Default exists and the Required Lenders have
given the Agent instructions not to so permit the extension of the expiration
date of such Letter of Credit. The Agent agrees to issue amendments to the
Letter(s) of Credit increasing the amount, or extending the expiration date,
thereof at the request of the Borrower subject to the conditions of Section 7
and the other terms of this Section 1.3. Without limiting the generality of the
foregoing, the Agent's obligation to issue, amend or extend the expiration date
of a Letter of Credit is subject to the conditions of Section 7 and the other
terms of this Section 1.3 and the Agent will not issue, amend or extend the
expiration date of any Letter of Credit if any Lender notifies the Agent of any
failure to satisfy or otherwise comply with such conditions and terms and
directs the Agent not to take such action.
(c) THE REIMBURSEMENT OBLIGATION. Subject to Section 1.3(b) hereof,
the obligation of the Borrower to reimburse the Agent for all drawings under a
Letter of Credit (a "REIMBURSEMENT OBLIGATION") shall be governed by the
Application related to such Letter of Credit, except that reimbursement of each
drawing shall be made in immediately available funds at the Agent's principal
office in Chicago,
Illinois by no later than 12:30 p.m. (Chicago time) on the
date when such drawing is paid or, if drawing was paid after 11:30 a.m. (Chicago
time), by the end of such day. If the Borrower does not make any such
reimbursement payment on the date due and the
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Participating Lenders fund their participations therein in the manner set forth
in Section 1.3(d) below, then all payments thereafter received by the Agent in
discharge of any of the relevant Reimbursement Obligations shall be distributed
in accordance with Section 1.3(d) below.
(d) THE PARTICIPATING INTERESTS. Each Lender (other than the Lender
then acting as Agent in issuing Letters of Credit), by its acceptance hereof,
severally agrees to purchase from the Agent, and the Agent hereby agrees to sell
to each such Lender (a "PARTICIPATING LENDER"), an undivided percentage
participating interest (a "PARTICIPATING INTEREST"), to the extent of its
Revolver Percentage, in each Letter of Credit issued by, and each Reimbursement
Obligation owed to, the Agent. Upon any failure by the Borrower to pay any
Reimbursement Obligation in respect of a Letter of Credit issued for the
Borrower's account at the time required on the date the related drawing is paid,
as set forth in Section 1.3(c) above, or if the Agent is required at any time to
return to the Borrower or to a trustee, receiver, liquidator, custodian or other
Person any portion of any payment of any Reimbursement Obligation, each
Participating Lender shall, not later than the Business Day it receives a
certificate in the form of Exhibit F hereto from the Agent to such effect, if
such certificate is received before 1:00 p.m. (Chicago time), or not later than
the following Business Day, if such certificate is received after such time, pay
to the Agent an amount equal to its Revolver Percentage of such unpaid or
recaptured Reimbursement Obligation together with interest on such amount
accrued from the date the related payment was made by the Agent to the date of
such payment by such Participating Lender at a rate per annum equal to (i) from
the date the related payment was made by the Agent to the date two (2) Business
Days after payment by such Participating Lender is due hereunder, the Federal
Funds Rate for each such day and (ii) from the date two (2) Business Days after
the date such payment is due from such Participating Lender to the date such
payment is made by such Participating Lender, the Domestic Rate in effect for
each such day. Each such Participating Lender shall thereafter be entitled to
receive its Revolver Percentage of each payment received in respect of the
relevant Reimbursement Obligation and of interest paid thereon, with the Agent
retaining its Revolver Percentage as a Lender hereunder.
The several obligations of the Participating Lenders to the Agent under
this Section 1.3 shall be absolute, irrevocable and unconditional under any and
all circumstances whatsoever (except to the extent the Borrower is relieved from
its obligation to reimburse the Agent for a drawing under a Letter of Credit
because of the Agent's gross negligence or willful misconduct in determining
that documents received under the Letter of Credit comply with the terms
thereof) and shall not be subject to any set-off, counterclaim or defense to
payment which any Participating Lender may have or have had against the
Borrower, the Agent, any other Lender or any other Person whatsoever. Without
limiting the generality of the foregoing, such obligations shall not be affected
by any Default or Event of Default or by any reduction or termination of any
Revolving Credit Commitment of any Lender, and each payment by a Participating
Lender under this Section 1.3 shall be made without any offset, abatement,
withholding or reduction whatsoever. The Agent shall be entitled to offset
amounts received for the account of a Lender under this Agreement against unpaid
amounts due from such Lender to the Agent hereunder (whether as fundings of
participations, indemnities or otherwise), but shall not be entitled to offset
against amounts owed to the Agent by any Lender arising outside this Agreement.
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(e) INDEMNIFICATION. Each Participating Lender shall, to the extent
of its respective Revolver Percentage, indemnify the Agent (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from the Agent's gross negligence or willful misconduct)
that the Agent may suffer or incur in connection with any Letter of Credit. The
obligations of the Participating Lenders under this Section 1.3(d) and all other
parts of this Section 1.3 shall survive termination of this Agreement and of all
other L/C Documents.
(f) CHANGE IN LAWS. If the Agent or any Lender shall determine in
good faith that any change in any applicable law, regulation or guideline
(including, without limitation, Regulation D of the Board of Governors of the
Federal Reserve System) or any new law, regulation or guideline, or any
interpretation of any of the foregoing by any governmental authority charged
with the administration thereof or any central bank or other fiscal, monetary or
other authority having jurisdiction over the Agent or such Lender (whether or
not having the force of law), shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against the Letters of Credit, or the
Agent's or such Lender's or the liability of the Borrower with respect
thereto; or
(ii) impose on the Agent or such Lender any penalty with
respect to the foregoing or any other condition regarding this
Agreement, the Applications or the Letters of Credit;
and the Agent or such Lender shall determine in good faith that the result of
any of the foregoing is to increase the cost (whether by incurring a cost or
adding to a cost) to the Agent or such Lender of issuing, maintaining or
participating in the Letters of Credit hereunder (without benefit of, or credit
for, any prorations, exemptions, credits or other offsets available under any
such laws, regulations, guidelines or interpretations thereof), then the
Borrower shall pay on demand to the Agent or such Lender from time to time as
specified by the Agent or such Lender such additional amounts as the Agent or
such Lender shall determine are sufficient to compensate and indemnify it for
such increased cost in respect of each such Letter of Credit; PROVIDED, HOWEVER,
that the Borrower shall not be obligated to pay any such amount or amounts to
the extent such additional cost was incurred or paid by such Lender more than
sixty (60) days prior to the date of the delivery of the certificate referred to
in the immediately following sentence (nothing herein to impair or otherwise
affect the Borrower's liability hereunder for costs subsequently incurred or
paid by such Lender).
SECTION 1.4. MANNER AND DISBURSEMENT OF BORROWINGS. (a) GENERALLY. The
Borrower shall give written or telephonic notice to the Agent (which notice
shall be irrevocable once given and, if given by telephone, shall be promptly
confirmed in writing) by no later than 11:00 a.m. (Chicago time) on any Business
Day of each request for a Loan, in each case specifying the type of Loan
(whether a Revolving Loan or a Term Loan) which is to be made, the amount of
such Loan and the date such Loan is to be made. The Agent shall promptly notify
each Lender of the Agent's receipt of each such notice. Each Loan shall
initially constitute part of the applicable Domestic Rate Portion except to the
extent the Borrower has otherwise timely
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elected as provided in Section 2 hereof. Not later than 12:00 noon (Chicago
time) on the date specified for any Loan to be made by a Lender hereunder, such
Lender shall make the proceeds of its pro rata share of such Loan available to
the Agent in Chicago in immediately available funds. Subject to the provisions
of Section 7 hereof, the proceeds of each Loan shall be made available to the
Borrower at the principal office of the Agent in Chicago,
Illinois, in
immediately available funds, upon receipt by the Agent from each Lender of its
pro rata share of such Loan.
(b) REIMBURSEMENT OBLIGATION. In the event the Borrower fails to give
notice pursuant to Section 1.4(a) above of a Revolving Loan equal to the amount
of a Reimbursement Obligation and has not notified the Agent by 11:00 a.m.
(Chicago time) on the day such Reimbursement Obligation becomes due that it
intends to repay such Reimbursement Obligation through funds not borrowed under
this Agreement, the Borrower shall be deemed to have requested a Revolving Loan
constituting part of the Domestic Rate Portion on such day in the amount of the
Reimbursement Obligation then due, subject to Section 7.1 hereof, which
Revolving Loan shall be applied to pay the Reimbursement Obligation then due.
(c) AGENT RELIANCE ON BANK FUNDING. Unless the Agent shall have been
notified by a Lender prior to 11:30 a.m. (Chicago time) on the date a Loan is to
be made hereunder that such Lender does not intend to make its pro rata share of
such Loan available to the Agent, the Agent may assume that such Lender has made
such share available to the Agent on such date and the Agent may in reliance
upon such assumption make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Agent by such
Lender and the Agent has made such amount available to the Borrower, the Agent
shall be entitled to receive such amount from such Lender forthwith upon the
Agent's demand, together with interest thereon in respect of each day during the
period commencing on the date such amount was made available to the Borrower and
ending on but excluding the date the Agent recovers such amount at a rate per
annum equal to the effective rate charged to the Agent for overnight federal
funds transactions with member banks of the federal reserve system for each day
as determined by the Agent (or in the case of a day which is not a Business Day,
then for the preceding day). If such amount is not received from such Lender by
the Agent immediately upon demand, the Borrower will, on demand, repay to the
Agent the proceeds of the Loan attributable to such Lender with interest thereon
at a rate per annum equal to the interest rate applicable to the relevant Loan,
but without such payment being considered a payment or prepayment of a Loan, so
that the Borrower will have no liability under Section 2.9 hereof with respect
to such payment.
SECTION 1.5. MANNER OF OBTAINING LETTERS OF CREDIT. The Borrower shall
provide at least four (4) Business Days' advance written notice to the Agent of
a Borrower's request for the issuance for the Borrower's account of a Letter of
Credit, such notice in each case to be accompanied by an Application for such
Letter of Credit properly completed and executed by the Borrower and in the case
of an extension or an increase in the amount of a Letter of Credit, a written
request therefor, in a form acceptable to the Agent, in each case, together with
the fees called for by this Agreement. The Agent shall promptly notify each
Lender of the Agent's receipt of each such notice.
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SECTION 1.6. THE SWING LINE. (a) SWING LOANS. Subject to all of the
terms and conditions hereof, ▇▇▇▇▇▇ Trust and Savings Bank ("▇▇▇▇▇▇") agrees to
make loans ("SWING LOANS") in U.S. Dollars to the Borrower under the swing line
facility set forth in this Section 1.6 (the "SWING LINE") which shall not in the
aggregate at any time outstanding exceed the lesser of (i) the Swing Line
Commitment or (ii) the difference between (a) the lesser of (1) the Available
Revolving Credit Commitments in effect at such time or (2) the Borrowing Base as
then determined and computed and (b) the sum of Revolving Loans and L/C
Obligations outstanding at the time of computation. The Swing Line Commitment
shall be available to the Borrower and may be availed of by the Borrower from
time to time and borrowings thereunder may be repaid and used again during the
period ending on the Termination Date; PROVIDED that each Swing Loan must be
repaid on the last day of the Interest Period applicable thereto. All Swing
Loans shall be evidenced by a single promissory note of the Borrower issued to
▇▇▇▇▇▇ in the form of Exhibit D hereto (the "SWING LINE NOTE"). Without regard
to the face principal amount of the Swing Line Note, the actual principal amount
at any time outstanding and owing by the Borrower on account of the Swing Line
Note during the period ending on the Termination Date shall be the sum of all
Swing Loans then or theretofore made thereon less all payments actually received
thereon during such period.
(b) PAYMENT. Each Swing Loan shall be due and payable on the last day
of the Interest Period selected therefor. The Borrower may voluntarily prepay
any Swing Loan bearing interest at the Domestic Rate before its maturity at any
time upon notice to ▇▇▇▇▇▇ prior to 1:00 p.m. (Chicago time) on the date fixed
for prepayment, each such prepayment to be made by the payment of the principal
amount to be prepaid and accrued interest thereon to the date of prepayment;
PROVIDED, HOWEVER, the Borrower may not voluntarily prepay any Swing Loan
bearing interest at ▇▇▇▇▇▇' Quoted Rate before its maturity.
(c) MINIMUM BORROWING AMOUNT. Each Swing Loan which bears interest
with reference to the Domestic Rate shall be in an amount not less than
$100,000. Each Swing Loan which bears interest at ▇▇▇▇▇▇' Quoted Rate shall be
in an amount not less than $500,000.
(d) INTEREST ON SWING LOANS. Each Swing Loan shall bear interest at
the Domestic Rate from time to time in effect plus the Applicable Margin; or (y)
if the Borrower so elects in accordance with the following provisions, ▇▇▇▇▇▇'
Quoted Rate; PROVIDED, HOWEVER, that if any Swing Loan is not paid when due
(whether by lapse of time, acceleration or otherwise) such Swing Loan shall bear
interest, whether before or after judgment, until payment in full thereof
through the end of the Interest Period then applicable thereto at a rate per
annum equal to the sum of two percent (2%) plus the interest rate which would
otherwise be applicable thereto and, thereafter, at a rate per annum equal to
the sum of two percent (2%) plus the Applicable Margin plus the Domestic Rate
from time to time in effect. Interest on each Swing Loan shall be due and
payable on the last day of each Interest Period applicable thereto, and interest
after maturity (whether by lapse of time, acceleration or otherwise) shall be
due and payable upon demand.
(e) REQUESTS FOR SWING LOANS. The Borrower shall give ▇▇▇▇▇▇ prior
notice (which may be written or oral) no later than 12:00 Noon (Chicago time) on
the date upon which the Borrower requests that any Swing Loan be made, of the
amount and date of such Swing Loan and the Interest Period selected therefor.
Within thirty (30) minutes after receiving such notice, ▇▇▇▇▇▇
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shall in its discretion quote an interest rate to the Borrower at which ▇▇▇▇▇▇
would be willing to make such Swing Loan available to the Borrower for a given
Interest Period (the rate so quoted for a given Interest Period being herein
referred to as "▇▇▇▇▇▇' QUOTED RATE"). The Borrower acknowledges and agrees that
the interest rate quote is given for immediate and irrevocable acceptance, and
if the Borrower does not so immediately accept ▇▇▇▇▇▇' Quoted Rate for the full
amount requested by the Borrower for such Swing Loan, the ▇▇▇▇▇▇' Quoted Rate
shall be deemed immediately withdrawn and such Swing Loan shall bear interest at
the sum of the Applicable Margin plus the Domestic Rate from time to time in
effect. Subject to all of the terms and conditions hereof, the proceeds of such
Swing Loan shall be made available to the Borrower on the date so requested at
the offices of the Agent in Chicago,
Illinois. Anything contained in the
foregoing to the contrary notwithstanding, (i) the obligation of ▇▇▇▇▇▇ to make
Swing Loans shall be subject to all of the terms and conditions of this
Agreement and (ii) ▇▇▇▇▇▇ shall not be obligated to make more than one Swing
Loan during any one day.
(f) REFUNDING LOANS. In its sole and absolute discretion, ▇▇▇▇▇▇ may
at any time, on behalf of the Borrower (which hereby irrevocably authorizes
▇▇▇▇▇▇ to act on its behalf for such purpose) and with notice to the Borrower,
request each Lender to make a Revolving Loan constituting the Domestic Rate
Portion of the Revolving Credit Notes in an amount equal to such Lender's
Revolver Percentage of the amount of the Swing Loans outstanding on the date
such notice is given. Unless any of the conditions of Section 7.1 are not
fulfilled on such date, each Bank shall make the proceeds of its requested pro
rata share of such Revolving Loan available to ▇▇▇▇▇▇, in immediately available
funds, at ▇▇▇▇▇▇' principal office in Chicago,
Illinois, before 12:00 Noon
(Chicago time) on the Business Day following the day such notice is given. The
proceeds of such Revolving Loan shall be immediately applied to repay the
outstanding Swing Loans; PROVIDED, HOWEVER, that unless any Default or Event of
Default has occurred and is continuing or the Borrower otherwise permits, the
proceeds of such Revolving Loan shall not be applied to repay any outstanding
Swing Loan bearing interest at ▇▇▇▇▇▇' Quoted Rate prior to the end of the
Interest Period applicable thereto.
(g) PARTICIPATIONS. If any Lender refuses or otherwise fails to make
its pro rata share of a Revolving Loan when requested by ▇▇▇▇▇▇ pursuant to
Section 1.6(f) above (because the conditions in Section 7.1 are not satisfied or
otherwise), such Lender will, by the time and in the manner such share of such
Revolving Loan was to have been funded to ▇▇▇▇▇▇, purchase from ▇▇▇▇▇▇ an
undivided participating interest in the outstanding Swing Loans in an amount
equal to its Revolver Percentage of the aggregate principal amount of Swing
Loans that were to have been repaid with such Revolving Loans, PROVIDED no
purchase of a participation in a Swing Loan bearing interest at ▇▇▇▇▇▇' Quoted
Rate need be made until after expiration of the Interest Period applicable
thereto. Each Lender that so purchases a participation in a Swing Loan shall
thereafter be entitled to receive its Revolver Percentage of each payment of
principal received on the Swing Loan and of interest received thereon accruing
from the date such Bank funded to ▇▇▇▇▇▇ its participation in such Loan. The
several obligations of the Lenders under this Section 1.6(g) shall be absolute,
irrevocable and unconditional under any and all circumstances whatsoever and
shall not be subject to any set-off, counterclaim or defense to payment which
any Lender may have or have had against the Borrower, any other Lender or any
other Person whatever. Without limiting the generality of the foregoing, such
obligations shall not be affected by any Default or Event of Default or by any
reduction or termination of the Commitments of any Lender, and each payment
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made by a Lender under this Section 1.6(g) shall be made without any offset,
abatement, withholding or reduction whatsoever.
SECTION 2. INTEREST AND CHANGE IN CIRCUMSTANCES.
SECTION 2.1. INTEREST RATE OPTIONS. (a) Subject to the terms and
conditions of this Section 2, portions of the principal indebtedness evidenced
by the Revolving Credit Notes and Term Notes (all of the indebtedness evidenced
by such Notes, whether or not such Notes are of the same class, bearing interest
at the same rate for the same period of time being hereinafter referred to as a
"PORTION") may, at the option of the Borrower, bear interest with reference to
the Domestic Rate (the "DOMESTIC RATE PORTION") or with reference to the
Adjusted LIBOR ("LIBOR PORTIONS"), and Portions of a particular class of Notes
may be converted from time to time from one basis for such Notes to the other.
All of the indebtedness evidenced by the Revolving Credit Notes and Term Notes
which is not part of a LIBOR Portion shall constitute a single Domestic Rate
Portion. All of the indebtedness evidenced by the Revolving Credit Notes and
Term Notes which bears interest with reference to a particular Adjusted LIBOR
for a particular Interest Period shall constitute a single LIBOR Portion.
Anything contained herein to the contrary notwithstanding, the obligation of the
Lenders to create, continue or effect by conversion any LIBOR Portion shall be
conditioned upon the fact that at the time no Default or Event of Default shall
have occurred and be continuing. The Borrower hereby promises to pay interest on
each Portion at the rates and times specified in this Section 2.
(b) DOMESTIC RATE PORTION. Each Domestic Rate Portion shall bear
interest (which the Borrower hereby promises to pay at the times herein
provided) at the rate per annum determined by adding the Applicable Margin to
the Domestic Rate as in effect from time to time, PROVIDED that if a Domestic
Rate Portion or any part thereof is not paid when due (whether by lapse of time,
acceleration or otherwise) such Portion shall bear interest (which the Borrower
hereby promises to pay at the times herein provided), before as well as after
judgment, until payment in full thereof at the rate per annum determined by
adding 2% to the interest rate which would otherwise be applicable thereto from
time to time. Interest on the Domestic Rate Portion shall be payable monthly on
the last day of each month in each year and at maturity of the applicable Notes,
and interest after maturity shall be due and payable upon demand. Any change in
the interest rate on the Domestic Rate Portions resulting from a change in the
Domestic Rate shall be effective on the date of the relevant change in the
Domestic Rate.
(c) LIBOR PORTIONS. Each LIBOR Portion shall bear interest (which the
relevant Borrower hereby promises to pay at the times herein provided) for each
Interest Period selected therefor at a rate per annum determined by adding the
Applicable Margin to the Adjusted LIBOR for such Interest Period, PROVIDED that
if any LIBOR Portion is not paid when due (whether by lapse of time,
acceleration or otherwise) such Portion shall bear interest (which the Borrower
hereby promises to pay at the times herein provided), whether before or after
judgment, until payment in full thereof through the end of the Interest Period
then applicable thereto at the rate per annum determined by adding 2% to the
interest rate which would otherwise be applicable thereto, and effective at the
end of the Interest Period such LIBOR Portion shall automatically be converted
into and added to the Domestic Rate Portion and shall thereafter bear interest
at the interest rate applicable to the Domestic Rate Portion of the
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applicable Notes after default. Interest on each LIBOR Portion shall be due and
payable on the last day of each Interest Period applicable thereto and, with
respect to any Interest Period applicable to a LIBOR Portion in excess of three
(3) months, on the date occurring every three (3) months after the date such
Interest Period began and at the end of such Interest Period, and interest after
maturity shall be due and payable upon demand. The Borrower shall notify the
Agent on or before 11:00 a.m. (Chicago time) on the third Business Day preceding
the end of an Interest Period applicable to a LIBOR Portion whether such LIBOR
Portion is to continue as a LIBOR Portion, in which event the Borrower shall
notify the Agent of the new Interest Period selected therefor, and in the event
the Borrower shall fail to so notify the Agent, such LIBOR Portion shall
automatically be converted into and added to the Domestic Rate Portion of the
applicable Notes as of and on the last day of such Interest Period. The Agent
shall promptly notify each Lender of each notice received from the Borrower
pursuant to the foregoing provision.
SECTION 2.2. MINIMUM AMOUNTS. Each LIBOR Portion shall be in a minimum
amount of $1,000,000 or such greater amount which is an integral multiple of
$500,000.
SECTION 2.3. COMPUTATION OF INTEREST. All interest on each LIBOR
Portion shall be computed on the basis of a year of 360 days for the actual
number of days elapsed. All interest on the Domestic Rate Portion shall be
computed on the basis of a year of 365 days (or, in a leap year, 366 days) for
the actual number of days elapsed.
SECTION 2.4. MANNER OF RATE SELECTION. The Borrower shall notify the
Agent by 11:00 a.m. (Chicago time) at least three (3) Business Days prior to the
date upon which it requests that any LIBOR Portion be created or that any part
of the Domestic Rate Portion be converted into a LIBOR Portion (each such notice
to specify in each instance the amount thereof and the Interest Period selected
therefor), and the Agent shall advise each Lender of each notice by 2:00 p.m.
(Chicago time) on the same Business Day the Agent receives such notice. If any
request is made to convert a LIBOR Portion into the Domestic Rate Portion, such
conversion shall only be made so as to become effective as of the last day of
the Interest Period applicable thereto. All requests for the creation,
continuance or conversion of Portions under this Agreement shall be irrevocable.
SECTION 2.5. CHANGE OF LAW. Notwithstanding any other provisions of
this Agreement or of the Notes, if at any time any Lender shall determine in
good faith that any change in applicable laws, treaties or regulations or in the
interpretation thereof makes it unlawful for such Lender to create or continue
to maintain any LIBOR Portion, it shall promptly so notify the Agent (which
shall in turn promptly notify the Borrower and the other Lenders) and the
obligation of such Lender to create, continue or maintain LIBOR Portions under
this Agreement shall terminate until it is no longer unlawful for such Lender to
create, continue or maintain LIBOR Portions. The Borrower, on demand, shall, if
the continued maintenance of any such LIBOR Portion is unlawful, thereupon
prepay the outstanding principal amount of the affected LIBOR Portions, together
with all interest accrued thereon and all other amounts payable to the affected
Lender with respect thereto under this Agreement; PROVIDED, HOWEVER, that the
Borrower may instead elect to convert the principal amount of the affected LIBOR
Portion into
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the Domestic Rate Portion of the applicable Notes, subject to the terms and
conditions of this Agreement.
SECTION 2.6. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN
ADJUSTED LIBOR. Notwithstanding any other provision of this Agreement or of the
Notes, if prior to the commencement of any Interest Period:
(a) the Agent or Required Lenders in good faith determine that
deposits in the amount of any LIBOR Portion scheduled to be outstanding
during such Interest Period are not readily available to the Lenders in
the relevant market;
(b) the Agent or Required Lenders in good faith determine that
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining Adjusted LIBOR; or
(c) the Agent or Required Lenders in good faith determine
that (i) LIBOR as determined by the Agent will not adequately and fairly
reflect the cost to the Lenders of funding their LIBOR Portions for such
Interest Period and (ii) the Lenders' rights to payment under Section
2.7 hereof will not reasonably compensate them for such inadequate or
unfair reflection of such cost;
then the Agent or Required Lenders, as the case may be, shall promptly give
notice thereof to the other Lenders and the Borrower and the obligations of the
Lenders to create, continue or effect by conversion any LIBOR Portion in such
amount and for such Interest Period shall terminate until deposits in such
amount and for the Interest Period selected by or on behalf of the relevant
Borrower shall again be readily available in the relevant market and adequate
and reasonable means exist for ascertaining Adjusted LIBOR.
SECTION 2.7. TAXES AND INCREASED COSTS. With respect to any LIBOR
Portion, if any Lender shall determine in good faith that any change in any
applicable law, treaty, regulation or guideline (including, without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) or any new
law, treaty, regulation or guideline, or any interpretation of any of the
foregoing by any governmental authority charged with the administration thereof
or any central bank or other fiscal, monetary or other authority having
jurisdiction over such Lender or its lending branch or the LIBOR Portions
contemplated by this Agreement (whether or not having the force of law) shall:
(i) impose, increase, or deem applicable any reserve, special
deposit or similar requirement against assets held by, or deposits in or
for the account of, or loans by, or any other acquisition of funds or
disbursements by, such Lender which is not in any instance already
accounted for in computing Adjusted LIBOR;
(ii) subject such Lender, any LIBOR Portion or a Note to the
extent it evidences such a Portion, to any tax (including, without
limitation, any United States interest equalization tax or similar tax
however named applicable to the acquisition or holding of debt
obligations and any interest or penalties with respect thereto), duty,
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charge, stamp tax, fee, deduction or withholding in respect of this
Agreement, any LIBOR Portion or a Note to the extent it evidences such a
Portion, except such taxes as may be measured by the overall net income
or gross receipts of such Lender or its lending branches and imposed by
the jurisdiction, or any political subdivision or taxing authority
thereof, in which such Lender's principal executive office or its
lending branch is located;
(iii) change the basis of taxation of payments of principal and
interest due from the Borrower to such Lender hereunder or under a Note
to the extent it evidences any LIBOR Portion (other than by a change in
taxation of the overall net income or gross receipts of such Lender); or
(iv) impose on such Lender any penalty with respect to the
foregoing or any other condition regarding this Agreement, the
disbursement of credit hereunder, any LIBOR Portion or a Note to the
extent it evidences any LIBOR Portion;
and such Lender shall determine that the result of any of the foregoing is to
increase the cost (whether by incurring a cost or adding to a cost) to such
Lender of creating or maintaining any LIBOR Portion hereunder or to reduce the
amount of principal or interest received or receivable by such Lender (without
benefit of, or credit for, any prorations, exemption, credits or other offsets
available under any such laws, treaties, regulations, guidelines or
interpretations thereof), then the Borrower shall pay on demand to such Lender
from time to time as specified by such Lender such additional amounts as such
Lender shall reasonably determine are sufficient to compensate and indemnify it
for such increased cost or reduced amount; PROVIDED, HOWEVER, that the Borrower
shall not be obligated to pay any such amount or amounts to the extent such
additional cost or payment was incurred or paid by such Lender more than sixty
(60) days prior to the date of the delivery of the certificate referred to in
the immediately following sentence (nothing herein to impair or otherwise affect
the Borrower's liability hereunder for costs or payments subsequently incurred
or paid by such Lender). If a Lender makes such a claim for compensation, it
shall provide to the Borrower (with a copy to the Agent) a certificate setting
forth the computation of the increased cost or reduced amount as a result of any
event mentioned herein in reasonable detail and such certificate shall be
conclusive if reasonably determined.
SECTION 2.8. CHANGE IN CAPITAL ADEQUACY REQUIREMENTS. If any Lender
shall determine that the adoption after the date hereof of any applicable law,
rule or regulation regarding capital adequacy, or any change in any existing
law, rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by such Lender
(or any of its branches or any corporation controlling such Lender) with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's or such
corporation's capital, as the case may be, as a consequence of such Lender's
obligations hereunder or for the credit which is the subject matter hereof to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to liquidity and capital adequacy)
by an amount deemed by such Lender to
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be material, then from time to time, within fifteen (15) days after demand by
such Lender, the Borrower shall pay to the Lender such additional amount or
amounts reasonably determined by such Lender as will compensate such Lender for
such reduction; PROVIDED, HOWEVER, that the Borrower shall not be obligated to
compensate such Lender to the extent its rate of return was so reduced more than
sixty (60) days prior to the date of such demand (nothing herein to impair or
otherwise affect the Borrower's liability hereunder to compensate for subsequent
reductions in such Lender's rate of return).
SECTION 2.9. FUNDING INDEMNITY. In the event any Lender shall incur
any loss, cost or expense (including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired or contracted to be acquired by such Lender to fund or
maintain its part of any Fixed Rate Loan or the relending or reinvesting of such
deposits or other funds or amounts paid or prepaid to such Lender) as a result
of:
(i) any payment of a Fixed Rate Loan on a date other than the
last day of the then applicable Interest Period for any reason, whether
before or after default, and whether or not such payment is required by
any provisions of this Agreement; or
(ii) any failure by the Borrower to create, borrow, continue or
effect by conversion a Fixed Rate Loan on the date specified in a notice
given pursuant to this Agreement, unless such failure results from the
Lenders' inability or unwillingness pursuant to Sections 2.5 and 2.6
hereof to create, continue or effect by conversion a LIBOR Portion;
then, upon the demand of such Lender, the Borrower shall pay to such Lender such
amount as will reimburse such Lender for such loss, cost or expense. If a Lender
requests such a reimbursement, it shall provide to the Borrower (with a copy to
the Agent) a certificate setting forth the computation of the loss, cost or
expense giving rise to the request for reimbursement in reasonable detail and
such certificate shall be conclusive if reasonably determined; PROVIDED,
HOWEVER, that the Borrower shall not be obligated to pay any such amount or
amounts to the extent such loss, cost or expense was incurred by such Lender
more than sixty (60) days prior to the date of the delivery of such certificate
(nothing herein to impair or otherwise affect the Borrower's liability hereunder
to compensate for any subsequent loss, cost, or expense incurred by such
Lender).
SECTION 2.10. LENDING BRANCH. Each Lender may, at its option, elect to
make, fund or maintain its pro rata share of the Loans hereunder at the branches
or offices specified on the signature pages hereof or on any Assignment
Agreement executed and delivered pursuant to Section 12.15 hereof or at such of
its branches or offices as such Lender may from time to time elect.
SECTION 2.11. LENDER'S DUTY TO MITIGATE. Each Lender agrees that, as
promptly as practicable after it becomes aware of the occurrence of an event or
the existence of a condition that would cause it to be affected under Section
2.5, 2.6 or 2.7 hereof, such Lender will, after notice to the Borrower, to the
extent not inconsistent with such Lender's internal policies and customary
business practices, use its best efforts to make, fund or maintain the affected
LIBOR
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Portion or issue or participate in the affected Letter of Credit, as the case
may be, through another lending office of such Lender if as a result thereof the
unlawfulness which would otherwise require payment of such Portion pursuant to
Section 2.5 hereof would cease to exist or the circumstances which would
otherwise terminate such Lender's obligation to make such Portion under Section
2.6 hereof would cease to exist or the increased costs which would otherwise be
required to be paid in respect of such Portion or Letter of Credit pursuant to
Section 2.7 hereof would be materially reduced, and if, as determined by such
Lender, in its sole discretion, the making, funding or maintaining of such
Portion, or issuance or participation in such Letter of Credit, as the case may
be, through such other lending office would not otherwise adversely affect such
Portion or such Lender. The Borrower hereby agrees to pay all reasonable
expenses incurred by each such Lender in utilizing another lending office
pursuant to this Section 2.11.
SECTION 2.12. DISCRETION OF LENDERS AS TO MANNER OF FUNDING.
Notwithstanding any provision of this Agreement to the contrary, each Lender
shall be entitled to fund and maintain its funding of all or any part of its
Notes in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder (including, without
limitation, determinations under Sections 2.5, 2.6, 2.7 and 2.9 hereof) shall be
made as if each Lender had actually funded and maintained each LIBOR Portion
during each Interest Period applicable thereto through the purchase of deposits
in the relevant market in the amount of its share of such LIBOR Portion, having
a maturity corresponding to such Interest Period, and bearing an interest rate
equal to the LIBOR for such Interest Period.
SECTION 2.13. REPLACEMENT OF LENDER. (a) In the event that (x) the
Borrower receives from a Lender a certificate requesting an amount be paid to
such Lender under Section 1.3(f), 2.7 or 2.8 hereof and the Required Lenders
have not similarly made requests for payment arising out of the same
circumstances or (y) the obligation of any Lender to make or maintain any LIBOR
Portion has terminated under Section 2.5 or 2.6 hereof and the obligations of
the Required Lenders to make or maintain LIBOR Portions have not similarly
terminated by reason of the same circumstances or (z) any Lender becomes a
Defaulting Lender, then the Borrower may request other Lenders hereunder to
assume in full the Commitments then in effect of the Lender requesting such
amount be paid or whose obligations with respect to LIBOR Portions have so
terminated or of such Defaulting Lender, as the case may be (such Lender in each
case being herein referred to as the "REPLACEABLE LENDER"), and to purchase the
Notes issued to the Replaceable Lender at a price equal to the outstanding
principal amount of such Notes and the Replaceable Lender's share of any accrued
and unpaid interest on such Notes plus accrued and unpaid commitment fees owed
to the Replaceable Lender, and if any Lender or Lenders (each an "ASSUMING
LENDER") in their sole discretion agree so to assume in full the Commitments of
the Replaceable Lender (provided only one Assuming Lender shall assume the Swing
Line Commitment, if relevant), and after payment by the Borrower to the
Replaceable Lender of all amounts due under this Agreement to such Lender
(including any amount specified as due in a certificate submitted under Section
1.3(f), 2.7 or 2.8 hereof) not so paid by the Assuming Lender, then such
assumption shall take place in the manner set forth in subsection (b) below. In
the event no Lender or Lenders agrees to assume in full the Commitments of the
Replaceable Lender, then the Borrower may nominate one or more Lenders not then
party to this Agreement so to assume in full the Commitments of the Replaceable
Lender, and if such nominated Lender
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or Lenders are acceptable to the Agent and Required Lenders (excluding the
Replaceable Lender), such assumption shall take place in the manner set forth in
subsection (b) below and each such Lender or Lenders shall become a Lender
hereunder (each a "NEW LENDER") and the Replaceable Lender shall no longer be a
party hereto or have any rights hereunder.
(b) In the event a Replaceable Lender's Commitments are to be assumed
in full by an Assuming Lender or a New Lender, then such assumption shall take
place on a date acceptable to the Borrower, the Replaceable Lender and the
Assuming Lender or New Lender, as the case may be, and such assumption shall
take place through the payment of all amounts due under this Agreement to the
Replaceable Lender and the execution of such instruments and documents as shall,
in the reasonable opinion of the Agent, be reasonably necessary or appropriate
for the Assuming Lender or New Lender to assume in full the Commitments of the
Replaceable Lender (including, without limitation, the issuance of new Notes and
the execution of an amendment hereto making any New Lender a party hereto). In
the event no Assuming Lender or New Lender agrees to assume in full the
Commitments of the Replaceable Lender, then such Replaceable Lender shall remain
a party hereto and its Commitments shall remain in effect.
(c) The rights and remedies against a Defaulting Lender under this
Agreement, including without limitation this Section 2.13, are in addition to
other rights and remedies that the Borrower may have against such Defaulting
Lender with respect to any Loan which such Defaulting Lender has not funded, and
that the Agent, or any Lender may have against such Defaulting Lender with
respect to any such Loan.
SECTION 2.14. DEFAULT RATE. Notwithstanding anything to the contrary
contained in Section 2 hereof, while any Event of Default exists or after
acceleration, the Borrower shall pay interest (after as well as before entry of
judgment thereon to the extent permitted by law) on the principal amount of all
Loans owing by it (computed on the basis of a year of 360 days and actual days
elapsed) at a rate per annum equal to the sum of 4.50% plus the Domestic Rate
from time to time in effect; PROVIDED, HOWEVER, that in the absence of
acceleration, any adjustments pursuant to this Section shall be made at the
election of the Agent, acting at the request or with the consent of the Required
Lenders, with written notice to the Borrower. While any Event of Default exists
or after acceleration, interest shall be paid on demand of the Agent at the
request or with the consent of the Required Lenders.
SECTION 3. FEES, PREPAYMENTS, TERMINATIONS, APPLICATIONS AND NOTATIONS.
SECTION 3.1. FEES.
(a) COMMITMENT FEE. For the period from and including the date hereof
to but not including the Termination Date, the Borrower shall pay to the Agent
for the ratable benefit of the Lenders as hereinafter set forth, a commitment
fee at the Applicable Margin (computed on the basis of a year of 360 days for
the actual number of days elapsed) on the average daily Unused Revolving Credit
Commitments. Such commitment fee shall be payable monthly in arrears on the last
day of each month (commencing on February 28, 2002) and on the Termination Date.
Such commitment fee shall be allocated among the Lenders ratably in accordance
with the amount of their respective Revolving Credit Commitments which is not in
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use in the form of Revolving Loans, but with Swing Loans to be deemed Revolving
Loans which use exclusively the Revolving Credit Commitment of ▇▇▇▇▇▇ (or if
different, any other Lender which then holds the Swing Line Commitment).
(b) LETTER OF CREDIT FEES. On the date of issuance or extension, or
increase in the amount, of each Letter of Credit pursuant to Section 1.3 hereof,
the Borrower shall pay to the Agent for its own account an issuance fee equal to
..125% of the face amount of (or the increase in the face amount of) such Letter
of Credit. On the last day of each month (commencing on February 28, 2002), and
on the Termination Date, the Borrower shall pay to the Agent for the ratable
benefit of the Lenders in accordance with their percentages a fee equal to the
Applicable Margin for LIBOR Portions of the Revolving Loans (computed on the
basis of a year of 360 days for the actual number of days elapsed) on the
average daily outstanding undrawn amounts during such month of the Letters of
Credit. In addition to the letter of credit fees called for above, the Borrower
further agrees to pay to the Agent for its own account such processing and
transaction fees and charges as the Agent from time to time customarily imposes
in connection with any issuance, amendment, cancellation, negotiation and/or
payment of letters of credit and drafts drawn thereunder.
(c) AUDIT AND APPRAISAL FEES. The Borrower shall pay to the Agent for
its own use and benefit reasonable charges for audits of the Collateral by the
Agent or its agents or representatives in such amounts as the Agent may from
time to time reasonably request (the Agent acknowledging and agreeing that such
charges shall be computed in the same manner as it at the time customarily uses
for the assessment of charges for similar collateral audits actually performed
by it); PROVIDED, HOWEVER, that (i) unless otherwise agreed by the Required
Lenders, at least two (2) such audits (each a "SCHEDULED FIELD AUDIT") shall be
conducted during each calendar year, and (ii) in the absence of any Default or
Event of Default, the Borrower shall not be required to reimburse the Agent for
more than two (2) Scheduled Field Audits per calendar year. In addition, the
Required Lenders may one time during the term of this Agreement request a
comprehensive written appraisal of all of the fixed assets of the Borrower and
its Subsidiaries, such appraisal to be conducted at the Borrower's expense by a
recognized independent appraisal firm acceptable to the Agent and the Required
Lenders and resulting in a written report with a level of detail acceptable to
the Agent and the Required Lenders. Absent the occurrence and continuance of an
Event of Default, this appraisal shall not be requested prior to July 31, 2002.
(d) AGENT'S FEE. The Borrower shall pay to the Agent the fees agreed
to in a letter exchanged between them.
(e) RESTRUCTURING AND ACCRUED FEES. The Borrower shall pay to the
Agent, for the ratable account of the Lenders, on the earliest of (i) July 1,
2003, (ii) the Termination Date (whether due to acceleration or otherwise) or
(iii) the repayment in full of the aggregate principal amount of all Loans
hereunder, the sum of (1) $250,000, representing a restructuring fee earned on
the Effective Date and (2) $450,000, representing other fees due and owing to
the Lenders on the Effective Date the payment of which has been deferred by
agreement of the parties hereto.
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SECTION 3.2. VOLUNTARY PREPAYMENTS OF REVOLVING CREDIT AND TERM NOTES.
(a) REVOLVING CREDIT NOTES. The Borrower shall have the privilege of
prepaying the Revolving Credit Notes in whole or in part (but if in part, then
in a minimum amount of $100,000 or such greater amount which is an integral
multiple of $100,000) on any Business Day upon notice thereof to the Agent not
later than 11:00 a.m. (Chicago time) on such day, in the case of Domestic Rate
Portions, and on the third Business Day prior to such day, in the case of LIBOR
Portions, the Agent to promptly so notify the Lenders, by the Borrower paying to
the Agent for the account of the Lenders the principal amount to be prepaid and
(i) if such a prepayment prepays such Notes in full and is accompanied by the
termination in whole of the Revolving Credit Commitments pursuant to which such
Notes were issued, accrued interest thereon to the date of prepayment plus any
commitment fee which has accrued and is unpaid and (ii) any amount due the
Lenders under Section 2.9 hereof. Any amount so prepaid on the Revolving Credit
Notes may, subject to the terms and conditions of this Agreement, be reborrowed.
(b) TERM NOTES. The Borrower shall have the privilege of prepaying
the Term Notes in whole or in part (but if in part, then in a minimum amount of
$100,000 or such greater amount which is an integral multiple of $100,000 as to
any particular class of Term Notes being prepaid) at any time upon one (1)
Business Day's prior notice, in the case of Domestic Rate Portions, and three
(3) Business Days' prior notice, in the case of LIBOR Portions, to the Agent
(such notice, if received subsequent to 11:00 a.m. (Chicago time) on a given
day, to be treated as though received at the opening of business on the next
Business Day), which shall promptly so notify the Lenders, by paying to the
Agent for the account of the Lenders the principal amount to be prepaid and (i)
if such a prepayment prepays such Notes in full, accrued interest thereon to the
date of prepayment and (ii) any amounts due to the Lenders under Section 2.9
hereof. Voluntary prepayments of the principal of each class of the Term Notes
shall be applied in several installments thereof due on such class of Notes in
the inverse order of their respective maturities. No amount paid or prepaid on
the Term Notes may be reborrowed.
SECTION 3.3. MANDATORY PREPAYMENTS.
(a) EXCESS CASH FLOW. No later than August 15, 2002 and February 28,
2003, respectively, the Borrower shall pay over to the Agent for the ratable
benefit of the Lenders, as and for a mandatory prepayment, an amount equal to
(i) in the case of the August 15, 2002 payment, 50% of that portion of EBITDA
exceeding $7,350,000 for the six (6) month period ending June 30, 2002, and (ii)
in the case of the February 28, 2003 payment, 50% of that portion of EBITDA
exceeding $13,000,000 for the twelve (12) month period ending December 31, 2002,
LESS the amount actually paid to the Agent by the Borrower for the period ending
June 30, 2002 pursuant to the immediately preceding clause (i), each such
prepayment to be allocated to the Term Loans until repaid in full, and then to
prepay the Revolving Loans and prefund any outstanding Letters of Credit.
(b) EQUITY OFFERING. Within five (5) Business Days of receipt by the
Borrower of cash proceeds from any public offering or private placement of any
capital stock or other equity securities of the Borrower (other than proceeds
from (i) any sale of capital stock of Borrower
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pursuant to an employee stock ownership plan or (ii) any sale of capital stock
of Borrower, or any options to acquire any such stock, to officers, directors or
key employees of the Borrower or any of its Subsidiaries as compensation for
services rendered or (iii) any exercise by such officers or directors of such
options), the Borrower shall make a mandatory prepayment in an amount equal to
100% of the net cash proceeds of such issuance (net only of underwriting
discounts and commissions and any other reasonable out-of-pocket costs and
expenses directly incurred and payable in connection therewith), such prepayment
to be allocated to the Term Loans until repaid in full, and then to prepay the
Revolving Loans and prefund any outstanding Letters of Credit.
(c) ASSET SALES. Any and all proceeds derived from the sale or
disposition (whether voluntary or involuntary), or on account of damage or
destruction, of the real estate, furniture, fixtures, equipment or other fixed
assets of the Borrower or any Subsidiary shall be paid over to the Agent as and
for a mandatory prepayment, such prepayment to be allocated to the Term Loans
until repaid in full, and then to prepay the Revolving Loans and prefund any
outstanding Letters of Credit; PROVIDED, HOWEVER, that (i) the foregoing
provisions shall be inapplicable to proceeds received by the Agent under the
Collateral Documents if and so long as, pursuant to the terms of the Collateral
Documents, the same are to be held by the Agent and disbursed for the
restoration, repair or replacement of the property in respect of which such
proceeds were received, (ii) no prepayment shall be required with respect to the
first $100,000 of net proceeds (i.e., gross proceeds net of out-of-pocket
expenses incurred in effecting the sale or other disposition) received during
any one calendar year from the sale or other disposition of equipment, furniture
and fixtures of the Borrower and its Subsidiaries, taken together, which are
worn out, obsolete or, in the good faith judgment of the Borrower or such
Subsidiary, no longer desirable to the efficient conduct of its business as then
conducted, (iii) no prepayment shall be required with respect to proceeds
received from the sale, damage or destruction of any of the equipment or other
assets subject to Liens permitted by Section 8.12 hereof if and to the extent
such proceeds are applied to reduce the indebtedness secured by such Liens and
(iv) so long as no Default or Event of Default has occurred or is continuing the
Borrower or such Subsidiary, as the case may be, may retain the proceeds derived
from the sale, damage or destruction of fixtures, furniture and equipment if and
to the extent that the Borrower or such Subsidiary establishes to the reasonable
satisfaction of the Agent that the equipment sold, damaged, or destroyed has
been replaced (or repaired in the case of damaged property) with fixtures,
furniture or equipment of at least equal value and utility to that replaced
(before any such damage or destruction) which is subject to a first lien in
favor of the Agent for the benefit of the Lenders. Nothing herein contained
shall in any manner impair or otherwise affect the prohibitions against the sale
or other disposition of Collateral contained herein and in the Collateral
Documents.
(d) APPLICATION. Each such prepayment required by this Section 3.3
shall be applied to the Term Notes or the Revolving Credit Notes, as the case
may be, ratably in accordance with the unpaid principal balances thereof, with
the amount of such prepayments on the Term Notes applied to reduce the remaining
scheduled amortization payments on the Term Notes in inverse order of maturity,
starting with the final payment due on July 1, 2003.
SECTION 3.4. TERMINATIONS OF REVOLVING CREDIT COMMITMENTS. (a)
VOLUNTARY. The Borrower shall have the right as of the close of any calendar
quarter, upon three (3) Business Days' prior notice to the Agent (which shall
promptly notify the Lenders), to ratably terminate
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the Revolving Credit Commitments without premium or penalty and in whole or in
part (but if in part, then in an amount not less than $5,000,000 or such greater
amount which is an integral multiple of $100,000), PROVIDED that the Revolving
Credit Commitments may not be reduced to an amount less than the aggregate
principal amount of the Revolving Loans, Swing Loans and L/C Obligations then
outstanding. Any termination of the Revolving Credit Commitments pursuant to
this Section may not be reinstated. Any reduction of the Revolving Credit
Commitments to a level below the L/C Sublimit shall effect a concurrent
reduction in the L/C Sublimit so as to equal the total Revolving Credit
Commitments after giving effect to such reduction. Each reduction of the
Revolving Credit Commitments shall concurrently reduce the Swing Line Commitment
by the same percentage as such reduction in the Revolving Credit Commitments.
(b) MANDATORY. Concurrent with each prepayment of Revolving
Loans required under subsections (a), (b) and (c) of Section 3.3, the Revolving
Credit Commitments shall permanently terminate ratably in accordance with each
Lender's Revolver Percentage by an amount equal to the aggregate amount required
to be prepaid and applied against Revolving Loans.
SECTION 3.5. PLACE AND APPLICATION OF PAYMENTS. All payments of
principal, interest, fees and all other amounts payable hereunder shall be made
to the Agent at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (or at
such other place as the Agent may specify) on the date any such payment is due
and payable. All such payments shall be made in lawful money of the United
States of America, in immediately available funds at the place of payment,
without setoff or counterclaim and without reduction for, and free from, any and
all present or future taxes, levies, imposts, duties, fees, charges, deductions,
withholdings, restrictions or conditions of any nature imposed by any government
or any political subdivision or taxing authority thereof (but excluding any
taxes imposed on or measured by the net income of the Lender). Payments received
by the Agent after 11:00 a.m. (Chicago time) shall be deemed received as of the
opening of business on the next Business Day. Except as herein provided, all
payments shall be received by the Agent for the ratable account of the Lenders
and shall be promptly distributed by the Agent ratably to the Lenders. Unless
the Borrower otherwise directs or this Agreement otherwise requires, principal
payments on any particular class of Notes shall be first applied to the Domestic
Rate Portion of such Notes until payment in full thereof, with any balance
applied to the LIBOR Portions of such Notes in the order in which their Interest
Periods expire. Any amount paid or prepaid on the Revolving Credit Notes or
Swing Line Note may, subject to all of the terms and conditions hereof, be
borrowed, repaid and borrowed again. No amount paid or prepaid on the Term Notes
may be reborrowed.
Anything contained herein to the contrary notwithstanding, all payments
and collections received in respect of the Loans and other Obligations or the
Hedging Liability by the Agent or any of the Lenders after the occurrence of an
Event of Default shall be remitted to the Agent and distributed as follows:
(a) first, to the payment of any outstanding costs and
expenses incurred by the Agent in protecting, preserving or enforcing
rights under this Agreement and the other Loan Documents and in any
event including all costs and expenses of a character which
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the Borrower has agreed to pay under Section 12.4 hereof (such funds to
be retained by the Agent for its own account unless it has previously
been reimbursed for such costs and expenses by the Lenders, in which
event such amounts shall be remitted to the Lenders to reimburse them
for payments theretofore made to the Agent);
(b) second, to the payment of any outstanding interest or
other fees or indemnification amounts due under the Loan Documents other
than for principal of the Loans and L/C Obligations, ratably as among
the Agent and the Lenders in accord with the amount of such interest and
other fees or Obligations owing each;
(c) third, to the payment of the principal of the Swing Loans;
(d) fourth, to the payment of the principal of the other Loans
and any liabilities in respect of Reimbursement Obligations and to the
Agent to be held as collateral security for any undrawn Letters of
Credit (until the Agent is holding an amount of cash equal to the then
outstanding amount of all such Letters of Credit), and Hedging
Liability, the aggregate amount paid to or held as collateral security
for the Lenders and, in the case of Hedging Liability, their Affiliates,
to be allocated pro rata as among the Lenders in accord with the then
respective aggregate unpaid principal balances of such Loans, the amount
of L/C Obligations, and the amount of Hedging Liability;
(e) fifth, to the Agent and the Lenders ratably in accord with
the amounts of other Obligations owing to each of them unless and until
all such Obligations have been fully paid and satisfied; and
(f) sixth, to the Borrower or to whoever the Agent reasonably
determines to be lawfully entitled thereto.
SECTION 3.6. NOTATIONS AND REQUESTS. All Loans made by a Lender
against a Note, the status of all amounts evidenced by a Note (if relevant) as
constituting part of the Domestic Rate Portion or a LIBOR Portion, and the rates
of interest and Interest Periods applicable to such Portions shall be recorded
by such Lender on its books and records or, at its option in any instance,
endorsed on a schedule to its Note and the unpaid principal balance and status,
rates and Interest Periods so recorded or endorsed by such Lender shall be prima
facie evidence in any court or other proceeding brought to enforce its Note of
the principal amount remaining unpaid thereon, the status of the Loans evidenced
thereby and the interest rates and Interest Periods applicable thereto; PROVIDED
THAT the failure of a Lender to record any of the foregoing shall not limit or
otherwise affect the obligation of the Borrower to repay the principal amount of
each Note together with accrued interest thereon. Prior to any Lender's
negotiation of a Revolving Credit or Term Note, such Lender shall record on a
schedule thereto the status of all amounts evidenced thereby as constituting
part of the Domestic Rate Portion or LIBOR Portion and the rates of interest and
the Interest Periods applicable thereto.
SECTION 3.7. EXCESS REVOLVING CREDIT. The Borrower covenants and
agrees that if at any time the aggregate principal amount outstanding on the
Revolving Loans, Swing Loans and L/C Obligations shall at any time and for any
reason exceed the lesser of the (x) the Revolving
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Credit Commitments then in effect or (y) the Borrowing Base as then determined
and computed, the Borrower shall within one (1) Business Day, without notice or
demand, pay over the amount of such excess to the Agent for the account of the
Lenders as and for a mandatory prepayment on the Swing Loans or, if the Swing
Loans have been prepaid in full but Revolving Loans are outstanding, then and in
any such event, such excess shall be paid over to the Agent as and for mandatory
prepayment on the Revolving Loans or, if the Revolving Loans have been prepaid
in full but L/C Obligations are outstanding, then and in any such event, such
excess shall be paid over to the Agent to be applied against the Reimbursement
Obligations then outstanding, with any balance held as collateral security for
any remaining L/C Obligations.
SECTION 4. COLLATERAL.
SECTION 4.1. COLLATERAL. The payment and performance of the
Obligations and Hedging Liability shall at all times be secured by, among other
things, (a) all of the Borrower's and its Subsidiaries' accounts, chattel paper,
documents, instruments, general intangibles, inventory, equipment and certain
other assets and property of the Borrower and its Subsidiaries, in each case
whether now owned or held or hereafter acquired or arising, pursuant to that
certain Second Amended and Restated Security Agreement from the Borrower and its
Subsidiaries dated as of even date herewith, as the same may be amended,
modified or supplemented from time to time (the "SECURITY AGREEMENT"), (b) all
of the capital stock of the Subsidiaries and certain other assets and property
of the Borrower and its Subsidiaries, in each case whether now owned or held or
hereafter acquired or arising, pursuant to that certain Second Amended and
Restated Pledge Agreement from the Borrower dated as of even date herewith, as
the same may be amended, modified or supplemented from time to time (the "PLEDGE
AGREEMENT"), and (c) the real estate and related assets and properties of the
Borrower and its Subsidiaries, in each case whether now owned or held or
hereafter acquired or arising, pursuant to mortgages and trust deeds reasonably
acceptable to the Agent as to form and substance (as supplemented or otherwise
modified from time to time, collectively the "MORTGAGES" and individually each a
"MORTGAGE").
SECTION 4.2. GUARANTIES. Payment of the Notes and the other
Obligations, as well as the Hedging Liability, shall at all times be jointly and
severally guaranteed by each Subsidiary pursuant hereto or pursuant to a
Guaranty issued by such Subsidiary. In the event any Subsidiary is hereafter
acquired or formed, the Borrower shall also cause such Subsidiary to execute
such Collateral Documents (having terms and conditions substantially similar to
those executed by the Borrower and its Subsidiaries in connection with the
initial Loans under this Agreement) as the Agent may then require granting the
Agent for the benefit of the Lenders a security interest in and lien on the
assets of such Subsidiary as collateral security for the Notes and the other
Obligations, as well as the Hedging Liability, together with such other
instruments, documents, certificates and opinions required by the Agent in
connection therewith.
SECTION 4.3. FURTHER ASSURANCES. The Borrower covenants and agrees
that it shall, and shall cause each Subsidiary to, comply with all terms and
conditions of each of the Collateral Documents and that the Borrower shall, and
shall cause each Subsidiary to, at any time and from time to time as requested
by the Agent, execute and deliver such further instruments and do such other
acts as the Agent or the Required Lenders may deem necessary or desirable to
provide for or protect or perfect the Lien of the Agent in the Collateral.
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SECTION 4.4. COLLECTIONS. The Borrower shall establish and maintain
such arrangements as shall be necessary or appropriate to assure that all
proceeds of the Collateral of the Borrower and its Subsidiaries are deposited
(in the same form as received) in accounts maintained with, or under the
dominion and control of, the Agent, such accounts to constitute special
restricted accounts, the Borrower and Guarantors acknowledging that the Agent
has (and is hereby granted) a lien on such accounts and all funds contained
therein to secure the Obligations and Hedging Liability. If and to the extent
that proceeds are deposited or maintained in one or more accounts maintained
with financial institutions other than the Agent, it shall be a condition to the
Borrower's or any Subsidiary's right to establish and maintain such deposit
accounts at any time following the Effective Date, that the financial
institutions maintaining such accounts shall have delivered to the Agent blocked
account agreements satisfactory to the Agent in form and substance pursuant to
which such financial institutions acknowledge the Agent's Lien thereon, waive
any right of offset or bankers' liens thereon (other than with respect to
account maintenance charges and returned items) and agree that, upon notice from
the Agent, the collected balances in such accounts will only be transferred to
the Agent. The Lenders agree with the Borrower that if and so long as no Default
or Event of Default has occurred or is continuing, amounts on deposit in the
accounts maintained with the Agent will (subject to the rules and regulations of
the Agent as from time to time in effect applicable to demand deposit accounts)
be made available to the Borrower and its Subsidiaries for use in the conduct of
their business. Upon the occurrence of an Event of Default, the Agent may apply
the funds on deposit in such accounts to the Obligations and Hedging Liability.
SECTION 5. DEFINITIONS; INTERPRETATION.
SECTION 5.1. DEFINITIONS. The following terms when used herein shall
have the following meanings:
"ACQUISITION" means (i) the acquisition of all or any substantial part
of the assets, property or business of any other person, firm or corporation,
(ii) any acquisition of a majority of the common stock or other equity
securities of any firm or corporation, or (iii) any other transaction pursuant
to which a Person is newly allocated a majority of the profits or losses of any
other Person.
"ADJUSTED LIBOR" means a rate per annum determined by the Agent pursuant
to the following formula:
Adjusted LIBOR = LIBOR
-----------------
100%-Reserve Percentage
"RESERVE PERCENTAGE" means, for the purpose of computing Adjusted LIBOR, the
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental or other special reserves) imposed by the
Board of Governors of the Federal Reserve System (or any successor) under
Regulation D on Eurocurrency liabilities (as such term is defined in Regulation
D) for the applicable Interest Period as of the first day of such Interest
Period, but subject to any amendments to such reserve requirement by such Board
or its successor, and taking into account any transitional adjustments thereto
becoming effective during
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such Interest Period. For purposes of this definition, LIBOR Portions shall be
deemed to be Eurocurrency liabilities as defined in Regulation D without benefit
of or credit for prorations, exemptions or offsets under Regulation D. "LIBOR"
means, for an Interest Period, (a) the LIBOR Index Rate for such Interest
Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetic average of the rate of interest per annum (rounded
upwards, if necessary, to nearest 1/100 of 1%) at which deposits in U.S. dollars
in immediately available funds are offered to the Agent at 11:00 a.m. (London,
England time) two (2) Business Days before the beginning of such Interest Period
by major banks in the interbank eurodollar market for a period equal to such
Interest Period and in an amount equal or comparable to the principal amount of
such LIBOR Portion which is scheduled to be made by the Agent. Each
determination of LIBOR made by the Agent shall be conclusive and binding absent
manifest error.
"AFFILIATE" means any Person, directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to control another Person for the purposes of this
definition if such Person possesses, directly or indirectly, the power to
direct, or cause the direction of, the management and policies of the other
Person, whether through the ownership of voting securities, common directors,
trustees or officers, by contract or otherwise; PROVIDED that, in any event, any
Person that owns, directly or indirectly, 5% or more of the securities having
the ordinary voting power for the election of directors or governing body of a
corporation or 5% or more of the partnership or other ownership interests of any
other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person.
"AGENT" means ▇▇▇▇▇▇ Trust and Savings Bank and any successor thereto
appointed pursuant to Section 10.1 hereof.
"APPLICABLE MARGIN" means, with respect to Loans, Reimbursement
Obligations, and the commitment fees payable under Section 3.1 hereof the rate
per annum specified below:
Applicable Margin for Domestic Rate Portions under
the Revolving Credit and Swing Line Commitment and
Term Loan and Reimbursement Obligations: 1.50%
Applicable Margin for LIBOR Portions under the
Revolving Credit and Term Loan and letter of credit
fee: 4.00%
Applicable Margin for commitment fee: 0.50%.
"APPLICATION" is defined in Section 1.3 hereof.
"APPROVED BASE CASE" means the Borrower's final base case projections
covering a period at least through June 30, 2003, and approved in form and
substance by the Lenders.
"AUTHORIZED REPRESENTATIVE" means those persons shown on the list of
officers and employees of the Borrower pursuant to Section 7.2(a) hereof or on
any update of any such list
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provided by the Borrower to the Agent, or any further or different officers and
employees so named by any Authorized Representative in a written notice to the
Agent.
"AVAILABLE REVOLVING CREDIT COMMITMENTS" shall mean Revolving Credit
Commitments as then in effect.
"BANK WARRANTS" means warrants to purchase Class A shares of the
Borrower's Common Stock heretofore issued by the Borrower substantially in the
form of Exhibit I to the Previous Credit Agreement.
"BORROWER" is defined in the introductory paragraph hereof.
"BORROWING BASE" means, as of any time it is to be determined, the sum
of:
(a) 85% of the then net book value of Eligible Accounts
(computed using the method of receivables valuation applied by
the Borrower in accordance with GAAP which reflects such value as
the net book value of its receivables, except that net book value
for such purposes shall not reflect any reserve for accounts more
than ninety days past due that have already been excluded from
gross accounts in computing such Eligible Accounts) less such
other reserves for uncollectibility, location of account debtor,
contras and other matters as the Agent or Required Lenders in
good faith shall from time to time reasonably deem appropriate to
adjust such net book value; PLUS
(b) 50% of the value (computed at its cost using the
method of inventory valuation applied by the Borrower in
accordance with GAAP which reflects such cost on the Borrower's
books as its net book value, but in any event after reducing such
value as so computed by the aggregate amount of all reserves for
obsolescence, slow-moving items, shrinkage and all such other
matters as the Agent or Required Lenders in good faith shall from
time to time reasonably deem appropriate to adjust such net book
value) of Eligible Inventory; PLUS
(c) the Other Asset Value then in effect;
PROVIDED that the Borrowing Base shall be computed only as against and on so
much of the Collateral as is included on the certificates to be furnished from
time to time by the Borrower pursuant to Section 8.5(f) hereof and, if required
by the Agent pursuant to any of the terms hereof or any Collateral Document, as
verified by such other evidence required to be furnished to the Agent pursuant
hereto or pursuant to any such Collateral Document. Notwithstanding the
foregoing to the contrary: (i) the amount of Eligible Accounts otherwise
included in the Borrowing Base shall be reduced, dollar for dollar, by a reserve
equal to the amount (if any) by which (x) the aggregate amount of accounts
payable owing by the Borrower and its Subsidiaries
-25-
to Deere and Caterpillar and their respective Affiliates for inventory and
supplies purchased (the "DEERE/CATERPILLAR PAYABLES") at any time exceeds (y)
$1,000,000; (ii) no reserve will be imposed in computing the Borrowing Base as
of any time solely in respect of the Deere/Caterpillar Payables to the extent
the same do not exceed such limit; and (iii) the Agent and the Required Lenders
shall have the right to impose reserves for other matters arising in connection
with receivables owing by Deere and Caterpillar and to otherwise impose reserves
in accordance with the Credit Agreement.
"BUSINESS DAY" means any day (other than a Saturday or Sunday) on which
banks are not authorized or required to close in Chicago,
Illinois and, when
used with respect to LIBOR Portions, a day on which banks are dealing in United
States Dollar deposits in the interbank market of London, England and Nassau,
Bahamas.
"CAPITAL EXPENDITURES" means for any period capital expenditures of the
Borrower and its Subsidiaries during such period as defined and classified in
accordance with GAAP.
"CAPITAL LEASE" means any lease of Property which in accordance with
GAAP is required to be capitalized on the balance sheet of the lessee.
"CAPITALIZED LEASE OBLIGATION" means the amount of the liability shown
on the balance sheet of any Person in respect of a Capital Lease determined in
accordance with GAAP.
"CASH FLOW LEVERAGE RATIO" means, as of any date the same is to be
determined, the ratio of (x) Total Funded Debt as of such date to (y) EBITDA for
the twelve (12) consecutive monthly accounting periods of the Borrower ending
on, or (if none so end) most recently completed prior to such date; PROVIDED
HOWEVER, that as of the last day of each monthly accounting period of the
Borrower ending prior to January 1, 2003, the Cash Flow Leverage Ratio shall
mean the ratio of (x) Total Funded Debt as of such date to (y) the product of
(i) EBITDA for each monthly accounting period of the Borrower (with each such
period taken together) which commenced on or any time after January 1, 2002 and
is then fully completed and (ii) a fraction, the numerator of which is 12 and
the denominator of which is the whole number of such fully completed monthly
accounting periods.
"CASH MATURITIES" means, with reference to any period, the aggregate
amount of payments required to be made by the Borrower and its Subsidiaries
during such period with respect to principal on all Indebtedness (whether at
maturity, as a result of mandatory sinking fund redemption, scheduled mandatory
prepayment or otherwise).
"CASH PREPAYMENTS" means, with reference to any period, the aggregate
amount of payments voluntarily made by the Borrower and its Subsidiaries during
such period with respect to principal on all Indebtedness.
"CHANGE OF CONTROL" means the occurrence, at any time after the date
hereof, of (i) any Person or two or more Persons acting in concert acquiring
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of securities of Borrower (or other
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securities convertible into such securities) representing more than 25% of the
combined voting power of all securities of the Borrower entitled to vote in the
election of directors; or (ii) commencing after the date hereof, individuals who
as of the date hereof were directors of the Borrower ceasing for any reason to
constitute a majority of the Board of Directors of the Borrower unless the
Persons replacing such individuals were nominated by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or the
Board of Directors of the Borrower; or (iii) any Person or two or more Persons
acting in concert acquiring by contract or otherwise, or entering into a
contract or arrangement which upon consummation will result in its or their
acquisition of, or control over, securities of the Borrower (or other securities
convertible into such securities) representing more than 25% of the combined
voting power of all securities of the Borrower entitled to vote in the election
of directors.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Pledge
Agreement and all other mortgages, deeds of trust, security agreements,
assignments, financing statements and other documents as shall from time to time
secure the Obligations.
"COMMITMENTS" means and includes the Revolving Credit Commitments, the
Swing Line Commitment and the Term Loan Commitments.
"COMPANIES" means the Borrower and the Domestic Subsidiaries, and the
term "COMPANY" shall mean any of the foregoing unless the context in which such
term is used shall otherwise require.
"COMPLIANCE CERTIFICATE" means a certificate in the form Exhibit E
hereto.
"CONSOLIDATED NET INCOME" means, with reference to any period, the net
income (or net deficit) of the Borrower and its Subsidiaries for such period as
computed on a consolidated basis in accordance with GAAP.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any Subsidiary, are treated
as a single employer under Section 414 of the Code.
"DEFAULT" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an Event
of Default.
"DEFAULTING LENDER" shall mean a Lender which has failed to fund as and
when required by the terms and conditions of this Agreement such Lender's
ratable share of any Loan hereunder, if any so long as such failure continues
unremedied.
"DOMESTIC RATE" means, for any day, the greater of (i) the rate of
interest announced by the Agent from time to time as its prime commercial rate,
as in effect on such day; and (ii) the sum of (x) the rate determined by the
Agent to be the average (rounded upwards, if necessary, to the next higher 1/100
of 1%) of the rates per annum quoted to the Agent at approximately
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10:00 a.m. (Chicago time) (or as soon thereafter as is practicable) on such day
(or, if such day is not a Business Day, on the immediately preceding Business
Day) by two or more Federal funds brokers selected by the Agent for the sale to
the Agent at face value of Federal funds in an amount equal or comparable to the
principal amount owed to the Agent for which such rate is being determined, PLUS
(y) 1/2 of 1% (0.5%).
"DOMESTIC RATE PORTION" is defined in Section 2.1(a) hereof.
"DOMESTIC SUBSIDIARY" means each Subsidiary of the Borrower which is
organized under the laws of the United States of America or any State thereof.
"EBIT" means, with reference to any period, Consolidated Net Income for
such period plus all amounts deducted in arriving at such Consolidated Net
Income for such period in respect of (i) Interest Expense for such period, PLUS
(ii) federal, state and local income taxes for such period.
"EBITDA" means, with reference to any period, Consolidated Net Income
for such period plus all amounts deducted in arriving at such Consolidated Net
Income for such period in respect of (i) Interest Expense for such period, plus
(ii) federal, state and local income taxes for such period, plus (iii) all
amounts properly charged for depreciation of fixed assets and amortization of
intangible assets during such period on the books of the Borrower and its
Subsidiaries.
"EFFECTIVE DATE" means the date on which the Agent has received signed
counterpart signature pages of this Agreement from each of the signatories (or,
in the case of a Lender, confirmation that such Lender has executed such a
counterpart and dispatched it for delivery to the Agent) and the conditions in
Section 7.1 and 7.2 hereof have been fulfilled.
"ELIGIBLE ACCOUNT" means each account receivable of each Company that:
(a) arises out of the sale by such Company of inventory
delivered to and accepted by, or out of the rendition of services fully
performed by such Company and accepted by, the account debtor on such
account receivable, and in each case such account receivable otherwise
represents a final sale;
(b) is an asset of such Company to which it has good and
marketable title, is freely assignable, is subject to a perfected, first
priority Lien in favor of the Agent, and is free and clear of any other
Lien;
(c) the account debtor thereon is not a Subsidiary or an
Affiliate of any Company; and
(d) is not unpaid more that ninety (90) days after the
original due date of the applicable original invoice (which due date
must be not more than sixty (60) days subsequent to the date of such
original invoice and which invoice date must not be more
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than four (4) days after the date of the relevant shipment or
performance of the relevant services giving rise to such account
receivable).
"ELIGIBLE INVENTORY" means all raw materials and finished goods
inventory of each Company (other than packaging, crating and supplies
inventory), provided that such inventory:
(a) is an asset of such Company to which it has good and
marketable title, is freely assignable, is subject to a perfected, first
priority Lien in favor of the Agent, and is free and clear of any other
Lien other than Liens permitted by Sections 8.12(a) hereof; and
(b) is located in the United States.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute thereto.
"EVENT OF DEFAULT" means any event or condition identified as such in
Section 9.1 hereof.
"EXISTING LETTERS OF CREDIT" means the Letters of Credit set forth on
Schedule 1 hereto.
"FIXED CHARGE COVERAGE RATIO" means, as of any date the same is to be
determined, the ratio of (i) EBITDA for the twelve (12) consecutive monthly
accounting periods of the Borrower ending on, or (if none so end) most recently
completed prior to such date to (ii) the sum (during the same twelve (12)
consecutive monthly accounting periods) of (a) Interest Expense and (b) Cash
Maturities; PROVIDED, HOWEVER, as of the last day of each monthly accounting
period of the Borrower ending prior to January 1, 2003, the Fixed Charge
Coverage Ratio shall mean the ratio of (i) EBITDA for each monthly accounting
period of the Borrower (with each such period taken together) which commenced on
or any time after January 1, 2002 and is then fully completed to (ii) the sum of
(for the same monthly accounting period or periods of the Borrower) (a) Interest
Expense and (b) Cash Maturities.
"FIXED RATE LOAN" means any LIBOR Portion and (to the extent bearing
interest with reference to ▇▇▇▇▇▇' Quoted Rate) any Swing Loan.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied by the Borrower and its Subsidiaries on a basis consistent
with the preparation of the Borrower's audited financial statements referred to
in Section 6.4 hereof.
"GUARANTOR" means each Subsidiary that is a signatory hereto or that
executes and delivers to the Agent a Guaranty along with the accompanying
closing documents required by Section 4.2 hereof.
"GUARANTEED OBLIGATIONS" is defined in Section 11.1 hereof.
"GUARANTY" means this Agreement as to Guarantors party hereto and
otherwise, a letter to the Agent in the form of Exhibit G hereto executed by a
Subsidiary whereby it acknowledges it
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is party hereto as a Guarantor under Section 11 hereof and also in the case of
any Subsidiary not organized under the laws of the United States of any State
thereof, such other form of guaranty as shall be reasonably acceptable to the
Agent and the Required Lenders.
"▇▇▇▇▇▇" is defined in Section 1.6(a) hereof.
"▇▇▇▇▇▇' QUOTED RATE" is defined in Section 1.6(e) hereof.
"HEDGING ARRANGEMENTS" is defined in Section 8.26 hereof.
"HEDGING LIABILITY" means the liability of the Borrower to any of the
Lenders or their Affiliates in respect of any interest rate swaps, interest rate
caps, interest rate collars, or other interest rate hedging arrangements as the
Borrower may from time to time enter into with any one or more of the Lenders or
their Affiliates. Unless and until the amount of the Hedging Liability is fixed
and determined, the Hedging Liability shall be deemed to be the market value of
the notional amount of the hedge from the date of computation to the date the
hedge expires.
"INDEBTEDNESS" means for any Person (without duplication) (i) all
indebtedness created, assumed or incurred in any manner by such Person
representing money borrowed (including by the issuance of debt securities), (ii)
all indebtedness for the deferred purchase price of property or services (but
specifically excluding (x) trade accounts payable arising in the ordinary course
of business which are not more than 180 days past due and (y) unsecured
indebtedness of the type and in the amount permitted pursuant to Section 8.11(e)
hereof), (iii) all indebtedness secured by any Lien upon Property of such
Person, whether or not such Person has assumed or become liable for the payment
of such indebtedness, (iv) all indebtedness secured by a purchase money mortgage
or other Lien to secure all or part of the purchase price of Property subject to
such mortgage or Lien, (v) all Capitalized Lease Obligations of such Person,
(vi) all obligations of such Person on or with respect to letters of credit,
bankers' acceptances and other extensions of credit whether or not representing
obligations for borrowed money and (vii) each "NON-COMPETE" and like payment
owed by such Person in connection with an Acquisition, to the extent such
payment would be classified as a liability under GAAP.
"INTEREST COVERAGE RATIO" means, as of any date the same is to be
determined, the ratio of (i) EBIT for the twelve (12) consecutive monthly
accounting periods of the Borrower ending on, or (if none so end) most recently
completed prior to such date to (ii) Interest Expense for the same twelve (12)
consecutive monthly accounting periods; PROVIDED, HOWEVER, as of the last day of
each monthly accounting period of the Borrower ending prior to January 1, 2003,
the Interest Coverage Ratio shall mean the ratio of (i) EBIT for each monthly
accounting period of the Borrower (with each such period taken together) which
commenced on or any time after January 1, 2002 and is then fully completed to
(ii) Interest Expense for the same monthly accounting period or periods of the
Borrower.
"INTEREST EXPENSE" means, with reference to any period (the "MEASUREMENT
PERIOD"), the sum of all interest charges with respect to Indebtedness
(including imputed interest charges with respect to Capitalized Lease
Obligations and all amortization of debt discount and expense) of
-30-
the Borrower and its Subsidiaries for such measurement period determined in
accordance with GAAP.
"INTEREST PERIOD" means, (a) with respect to any Swing Loan, the period
commencing on the date such Swing Loan is made and ending one to five,
inclusive, days thereafter as selected by the Borrower in the notice provided
herein and (b) with respect to any LIBOR Portion, the period commencing on, as
the case may be, the creation, continuation or conversion date with respect to
such LIBOR Portion and ending one (1), two (2) or three (3) months thereafter as
selected by the Borrower in its notice as provided herein; PROVIDED THAT, all of
the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) no Interest Period may extend beyond the final maturity
date of any Note evidencing such Portion;
(iii) the interest rate to be applicable to each LIBOR Portion
or Swing Loan for each Interest Period shall apply from and including
the first day of such Interest Period to but excluding the last day
thereof; and
(iv) no Interest Period may be selected if after giving effect
thereto the Borrower will be unable to make a principal payment
scheduled to be made during such Interest Period without paying part of
a LIBOR Portion on a date other than the last day of the Interest Period
applicable thereto.
For purposes of determining an Interest Period, a month means a period
starting on one day in a calendar month and ending on a numerically
corresponding day in the next calendar month, provided, however, if an Interest
Period begins on the last day of a month or if there is no numerically
corresponding day in the month in which an Interest Period is to end, then such
Interest Period shall end on the last Business Day of such month.
"L/C DOCUMENT" shall mean the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the Applications and
this Agreement.
"L/C OBLIGATIONS" means as of any date the same is to be determined, the
sum of (i) the aggregate undrawn amount then available under the Letters of
Credit then outstanding (with the undrawn amount available under a Letter of
Credit to be the maximum amount which can then be drawn thereunder (after giving
effect to any prior reductions in such amount, whether scheduled on the face of
such Letter of Credit or due to prior partial drawings) under any circumstances
and over any period of time plus (ii) all unpaid Reimbursement Obligations then
outstanding (other than any such Reimbursement Obligations as are being repaid
the same day directly out of the proceeds of a Revolving Loan requested for such
purpose).
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"L/C SUBLIMIT" shall mean $2,000,000, in each case as the same may be
reduced pursuant to Section 3.4 hereof.
"LENDER" means ▇▇▇▇▇▇ Trust and Savings Bank, the other financial
institutions which are signatories hereto, and all other financial institutions
becoming parties hereto pursuant to Section 12.15 hereof.
"LETTERS OF CREDIT" is defined in Section 1.3 hereof.
"LIBOR INDEX RATE" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a period equal to such
Interest Period, which appears on the Telerate Page 3750 as of 11:00 a.m.
(London, England time) on the day two (2) Business Days before the commencement
of such Interest Period.
"LIBOR PORTIONS" is defined in Section 2.1(a) hereof.
"LIEN" means any mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of a
vendor or lessor under any conditional sale, capital lease or other title
retention arrangement.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Applications, the
L/C Documents, the Guaranties and the Collateral Documents.
"LOANS" means and includes Revolving Loans, the Term Loans and the Swing
Loans.
"MATERIAL PLAN" is defined in Section 9.1(j) hereof.
"MID-CENTRAL" means Mid-Central Plastics, Inc., an Iowa corporation.
"▇▇▇▇▇▇ SOUTH CAROLINA" means ▇▇▇▇▇▇ Metalcraft Co. of South Carolina, a
South Carolina corporation.
"NET WORTH" means, at any time the same is to be determined, the total
shareholder equity (including common and preferred capital stock, additional
paid-in capital and retained earnings after deducting treasury stock, but
excluding minority interest in Subsidiaries) which would appear on the balance
sheet of the Borrower and its Subsidiaries determined on a consolidation basis
in accordance with GAAP.
"NOTES" means and includes the Revolving Credit Notes, the Swing Line
Note and the Term Notes. When used with reference to the Notes, the term "CLASS"
of Notes refers to the status of such Notes as one of the following three types,
Revolving Credit Notes, Term Notes and the Swing Line Note, such Notes to
constitute three separate classes of Notes.
"OBLIGATIONS" means all obligations of the Borrower to pay the principal
and interest on the Loans, all Reimbursement Obligations, all fees and charges
payable hereunder, and all other
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payment obligations of the Borrower arising under or in relation to any Loan
Document, in each case whether now existing or hereafter arising, due or to
become due, direct or indirect, absolute or contingent, and howsoever evidenced,
held or acquired.
"OTHER ASSET VALUE" means $2,500,000.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to any or all of its functions under ERISA.
"PERCENTAGES" means, for each Lender, such Lender's Revolver Percentage,
Term A Percentage and Term B Percentage, unless the context in which such term
is used shall otherwise require.
"PERSON" means an individual, partnership, corporation, association,
trust, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof.
"PLAN" means any employee pension benefit plan covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
that either (i) is maintained by a member of the Controlled Group for employees
of a member of the Controlled Group, (ii) is maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which a member of the Controlled Group is then making
or accruing an obligation to make contributions or has within the preceding five
plan years made contributions, or (iii) under which a member of the Controlled
Group has any liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years or by reason of being deemed a contributing
sponsor under Section 4064 of ERISA.
"PLEDGE AGREEMENT" is defined in Section 4.1 hereof.
"PORTION" is defined in Section 2.1(a) hereof.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"REIMBURSEMENT OBLIGATION" is defined in Section 1.3(c) hereof.
"REQUIRED LENDERS" means, as of the date of determination thereof, any
two (2) or more Lenders holding (including through participation interests) at
least 66-2/3% in aggregate principal amount of the Loans, L/C Obligations and
Unused Revolving Credit Commitments outstanding hereunder.
"REVOLVER PERCENTAGE" means, for each Lender, the percentage of the
Revolving Credit Commitments represented by such Lender's Revolving Credit
Commitment or, if the Revolving Credit Commitments have been terminated, the
percentage held by such Lender (including
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through participation interests in L/C Obligations) of the aggregate principal
amount of all outstanding Revolving Loans and L/C Obligations.
"REVOLVING CREDIT" is defined in the introductory paragraph hereof.
"REVOLVING CREDIT COMMITMENTS" shall mean the commitments of each Lender
to extend credit under the Revolving Credit in the aggregate amount of
$21,000,000 for all the Lenders (each Lender's share of the total Revolving
Credit Commitments to be in the percentage set forth opposite such Lender's
signature to this Credit Agreement under the heading "Revolving Credit
Commitment" and, if applicable, opposite such Lender's signature on the relevant
Assignment Agreement delivered pursuant to Section 12.15 hereof) (subject to the
paragraph immediately following).
All increases or reductions in the Revolving Credit Commitments shall
increase or decrease the Revolving Credit Commitments of the Lenders pro rata in
accordance with their Revolver Percentages.
"REVOLVING CREDIT NOTES" is defined in Section 1.1 hereof.
"REVOLVING LOANS" is defined in Section 1.1 hereof.
"SECURITY AGREEMENT" is defined in Section 4.1 hereof.
"SMP" means SMP Steel Corporation, a South Carolina corporation.
"SUBORDINATED DEBT" means (x) the currently outstanding Indebtedness of
the Borrower evidenced by those two Non-Negotiable Promissory Notes
(subordinated) each dated as of April 8, 1998, one payable to the order of
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. in the currently outstanding principal amount of $1,739,831
and the second payable to the order of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in the currently
outstanding principal amount of $827,018 and (y) any other indebtedness for
borrowed money subordinated in right of payment to the prior payment of the
Obligations by written provisions acceptable to the Agent and Required Lenders
in form and substance and otherwise pursuant to documentation, in an amount, and
containing interest rates, payment terms, maturities, amortization schedules,
covenants, defaults, remedies and other material terms in form and substance
satisfactory to the Agent and Required Lenders.
"SUBSIDIARY" means any corporation or other Person more than 50% of the
outstanding ordinary voting shares or other equity interests of which is at the
time directly or indirectly owned by the Borrower, by one or more of its
Subsidiaries, or by the Borrower and one or more of such Subsidiaries.
"SWING LINE" is defined in the introductory paragraph hereof.
"SWING LINE COMMITMENT" means $1,000,000 as reduced pursuant to the
terms hereof.
"SWING LINE NOTE" is defined in Section 1.6(a) hereof.
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"SWING LOANS" is defined in Section 1.6(a) hereof.
"TELERATE PAGE 3750" means the display designated as "PAGE 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. Dollar deposits).
"TERM LOAN" is defined in Section 1.2 hereof.
"TERM LOAN COMMITMENTS" means the commitments of the Lenders to make
Term Loans in the amounts set forth opposite their signature hereto under the
headings "TERM LOAN" and opposite their signatures on Assignment Agreements
delivered pursuant to Section 12.15 hereof under the heading "TERM LOAN," as
such amount may be reduced pursuant hereto. The Term Loan Commitments are
$32,965,419.92 as of the date hereof.
"TERM NOTE" is defined in Section 1.2 hereof.
"TERM PERCENTAGE" means, for each Lender, the percentage held by such
Lender of the aggregate principal amount of the outstanding Term Loan.
"TERMINATION DATE" means (x) July 1, 2003, or (y) if earlier, such
earlier date on which the Revolving Credit Commitments are terminated in whole
pursuant to Sections 3.4, 9.2 or 9.3 hereof.
"TOTAL FUNDED DEBT" means, at any time the same is to be determined, the
aggregate of all Indebtedness of the Borrower and its Subsidiaries at such time,
PLUS all Indebtedness of any other Person which is directly or indirectly
guaranteed by the Borrower or any of its Subsidiaries or which the Borrower of
any of its Subsidiaries has agreed (contingently or otherwise) to purchase or
otherwise acquire or in respect of which the Borrower or any of its Subsidiaries
has otherwise assured a creditor against loss.
"UNFUNDED VESTED LIABILITIES" means, for any Plan at any time, the
amount (if any) by which the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the Controlled Group to the PBGC or the Plan
under Title IV of ERISA.
"UNUSED REVOLVING CREDIT COMMITMENTS" means, at any time, the difference
between the Revolving Credit Commitments then in effect and the aggregate
outstanding principal amount of Revolving Loans, Swing Loans and L/C
Obligations.
"WELFARE PLAN" means a "welfare plan" as defined in Section 3(1) of
ERISA.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary of the Borrower all of the
issued and outstanding shares of capital stock (other than directors' qualifying
shares as required by law) or
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other equity interests are owned by the Borrower and/or one or more Wholly Owned
Subsidiaries within the meaning of this definition.
SECTION 5.2. INTERPRETATION. The foregoing definitions are equally
applicable to both the singular and plural forms of the terms defined. All
references to time of day herein are references to Chicago,
Illinois time unless
otherwise specifically provided. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, it shall be done in accordance with GAAP except
where such principles are inconsistent with the specific provisions of this
Agreement.
SECTION 5.3. CHANGE IN ACCOUNTING PRINCIPLES. If, after the date of
this Agreement, there shall occur any change in generally accepted accounting
principles from those used in the preparation of the financial statements
referred to in Section 6.4 hereof and such change shall result in a change in
the method of calculation of any financial covenant, standard or term found in
this Agreement, either the Borrower or the Required Lenders may by notice to the
Lenders and the Borrower, respectively, require that the Lenders and the
Borrower negotiate in good faith to amend such covenant, standard and term so as
equitably to reflect such change in accounting principles, with the desired
result being that the criteria for evaluating the financial condition of the
Borrower and its Subsidiaries shall be the same as if such change had not been
made. No delay by the Borrower or the Required Lenders in requiring such
negotiation shall limit their right to so require such a negotiation at any time
after such a change in accounting principles. Without limiting the generality of
the foregoing, the Borrower shall neither be deemed to be in compliance with any
financial covenant hereunder nor out of compliance with any financial covenant
hereunder if such state of compliance or noncompliance, as the case may be,
would not exist but for the occurrence of a change in accounting principles
after the date hereof.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders as follows:
SECTION 6.1. ORGANIZATION AND QUALIFICATION. The Borrower is duly
organized, validly existing and in good standing as a corporation under the laws
of the State of Georgia, and has full and adequate corporate power to own its
Property and carry on its business as now conducted. The Borrower is duly
licensed or qualified and in good standing in each jurisdiction in which the
nature of the business conducted by it or the nature of the Property owned or
leased by it requires such licensing or qualifying unless and to the extent that
the failure to be so licensed or qualified or to be in such good standing would
not have any material adverse effect on the financial condition, Properties,
business, or operations of the Borrower or in its ability to perform or the
Agent's ability to enforce performance of the Borrower's obligations under the
Loan Documents. The Borrower has full right and authority to enter into this
Agreement, to obtain the credit herein provided for, to issue its Notes in
evidence of the borrowings herein provided for, to execute and deliver each Loan
Document delivered by it, and to perform each and all of the matters and things
therein provided for; and the Loan Documents do not, nor does the performance or
observance by the Borrower of any of the matters and things therein provided
for, contravene or constitute a default under any provision of law or any
judgment, injunction, order or decree
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binding upon the Borrower or any charter or by-law provision of the Borrower or
any covenant, indenture or agreement of or affecting the Borrower or any of its
respective Properties, or result in the creation or imposition of any Lien on
any Property of the Borrower.
SECTION 6.2. SUBSIDIARIES. Each Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated or organized, as the case may be, has full and adequate power to
own its Property and carry on its business as now conducted, and is duly
licensed or qualified and in good standing in each jurisdiction in which the
nature of the business conducted by it or the nature of the Property owned or
leased by it requires such licensing or qualifying unless and to the extent that
the failure to be so licensed or qualified or to be in such good standing would
not have any material adverse effect on the financial condition, Properties,
business or operations of the Borrower and its Subsidiaries taken as a whole or
in its ability to perform or the Agent's ability to enforce performance of the
Borrower's obligations under the Loan Documents. Each Subsidiary has full right,
power and authority to execute and deliver each Loan Document delivered by it
and to observe and perform each and all of the matters and things therein
provided for, and the Loan Documents do not, nor will the performance or
observance by any Subsidiary of any of the matters and things therein provided
for, contravene any provision of law or any charter or by-law provision of any
Subsidiary or any covenant, indenture or agreement of or affecting the Borrower
or any Subsidiary or any of their respective Properties or require any
governmental approval or consent. Schedule 6.2 hereto identifies each
Subsidiary, the jurisdiction of its incorporation or organization, as the case
may be, the percentage of issued and outstanding shares of each class of its
capital stock or other equity interests owned by the Borrower and the
Subsidiaries and, if such percentage is not 100% (excluding directors'
qualifying shares as required by law), a description of each class of its
authorized capital stock and other equity interests and the number of shares of
each class issued and outstanding. All of the outstanding shares of capital
stock and other equity interests of each Subsidiary are validly issued and
outstanding and fully paid and nonassessable and all such shares and other
equity interests indicated on Schedule 6.2 as owned by the Borrower or a
Subsidiary are owned, beneficially and of record, by the Borrower or such
Subsidiary free and clear of all Liens. There are no outstanding commitments or
other obligations of any Subsidiary to issue, and no options, warrants or other
rights of any Person to acquire, any shares of any class of capital stock or
other equity interests of any Subsidiary.
SECTION 6.3. MARGIN STOCk. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System), and no part of the proceeds
of any Loan or Letter of Credit issued hereunder will be used to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock.
SECTION 6.4. FINANCIAL REPORTS. The consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 2000 and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, and accompanying
notes thereto, which financial statements are accompanied by the audit report of
KPMG LLP, independent public accountants, and the unaudited interim consolidated
balance sheet of the Borrower and its Subsidiaries as at November 30, 2001 and
the related consolidated
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statements of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for the eleven (11) months then ended, heretofore furnished to the
Lenders, fairly present the consolidated financial condition of the Borrower and
its Subsidiaries as at said dates and the consolidated results of their
operations and cash flows for the periods then ended in conformity with GAAP
applied on a consistent basis. Neither the Borrower nor any of its respective
Subsidiaries has contingent liabilities which are material to it other than as
indicated on such financial statements or, with respect to future periods, on
the financial statements furnished pursuant to Section 8.5 hereof. Since
November 30, 2001, there has been no material adverse change in the condition
(financial or otherwise) or business prospects of the Borrower and its
Subsidiaries taken as a whole.
SECTION 6.5. FULL DISCLOSURE. The statements and information furnished
to the Agent and the Lenders in connection with the negotiation of this
Agreement and the commitments by the Lenders to provide all or part of the
financing contemplated hereby do not contain any untrue statements of a material
fact or omit a material fact necessary to make the material statements contained
therein or herein not misleading, the Lenders acknowledging that as to any
projections furnished to any Lender and the Borrower only represent that the
same were prepared on the basis of information and estimates the Borrower
believed to be reasonable.
SECTION 6.6. GOOD TITLE. The Borrower and its respective Subsidiaries
have good and defensible title to their respective material assets as reflected
on the most recent consolidated balance sheet of the Borrower and its
Subsidiaries furnished to the Lenders (except for sales of assets by the
Borrower and such Subsidiaries in the ordinary course of their respective
businesses), subject to no Liens other than such thereof as are permitted by
Section 8.12 hereof.
SECTION 6.7. LITIGATION AND OTHER CONTROVERSIES. Except as set forth
on Schedule 6.7, there is no litigation or governmental proceeding or labor
controversy pending, nor to the knowledge of the Borrower threatened, against
the Borrower or any of its Subsidiaries which if adversely determined would
result in any material adverse change in the financial condition, Properties,
business or operations of the Borrower and its Subsidiaries taken as a whole.
SECTION 6.8. TAXES. All tax returns with respect to any income tax or
other material tax required to be filed by the Borrower or any Subsidiary in any
jurisdiction have, in fact, been filed, and all taxes, assessments, fees and
other governmental charges upon the Borrower or any Subsidiary or upon any of
their respective Properties, income or franchises, which are shown to be due and
payable in such returns, have been paid. The Borrower does not know of any
proposed additional tax assessment against the Borrower or any Subsidiary which
if paid (taking into consideration any cash segregated for such purpose) would
result in any material adverse change in the financial condition, Properties,
business or operations of the Borrower and its Subsidiaries taken as a whole.
Adequate provisions in accordance with GAAP for taxes on the books of the
Borrower and each Subsidiary have been made, or (to the extent such provisions
have not been made) adequate cash reserves for such taxes have been segregated,
in each case for all open years, and for its current fiscal period.
SECTION 6.9. APPROVALS. No authorization, consent, license, exemption,
filing or registration with any court or governmental department, agency or
instrumentality, nor any
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approval or consent of the stockholders of the Borrower or any other Person, is
or will be necessary to the valid execution, delivery or performance by the
Borrower of this Agreement, the Applications or the Notes.
SECTION 6.10. AFFILIATE TRANSACTIONS. Neither the Borrower nor any of
its Subsidiaries is a party to any contracts or agreements with any of its
Affiliates (other than with Wholly Owned Subsidiaries) on terms and conditions
which are less favorable to the Borrower or such Subsidiary than would be usual
and customary in similar contracts or agreements between Persons not affiliated
with each other.
SECTION 6.11. INVESTMENT COMPANY; PUBLIC UTILITY HOLDING COMPANY.
Neither the Borrower nor any of its Subsidiaries is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "public utility holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6.12. ERISA. The Borrower and each other member of its
Controlled Group has fulfilled its obligations under the minimum funding
standards of and is in compliance in all material respects with ERISA and the
Code to the extent applicable to it and has not incurred any liability to the
PBGC or a Plan under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA. Neither the Borrower nor any Subsidiary
has any contingent liabilities with respect to any post-retirement benefits
under a Welfare Plan, other than liability for continuation coverage described
in article 6 of Title I of ERISA.
SECTION 6.13. COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries
are in compliance with the requirements of all federal, state and local laws,
rules and regulations applicable to or pertaining to the Properties or business
operations of the Borrower or any such Subsidiary (including, without
limitation, the Occupational Safety and Health Act of 1970, the Americans with
Disabilities Act of 1990, and laws and regulations establishing quality criteria
and standards for air, water, land and toxic or hazardous wastes or substances),
non-compliance with which would reasonably be expected to have a material
adverse effect on the financial condition, Properties, business or operations of
the Borrower and its Subsidiaries taken as a whole. Neither the Borrower nor any
of its Subsidiaries has received notice to the effect that its operations are
not in compliance with any of the requirements of applicable federal, state or
local environmental, health and safety statutes and regulations or are the
subject of any governmental investigation evaluating whether any remedial action
is needed to respond to a release of any toxic or hazardous waste or substance
into the environment, which non-compliance or remedial action would reasonably
be expected to have a material adverse effect on the financial condition,
Properties, business or operations of the Borrower and its Subsidiaries taken as
a whole.
SECTION 6.14. OTHER AGREEMENTS. Neither the Borrower nor any of its
Subsidiaries is in default under the terms of any covenant, indenture or
agreement of or affecting the Borrower or any such Subsidiary or any of their
Properties, which default would have a material adverse effect on the financial
condition, Properties, business or operations of the Borrower and its
Subsidiaries taken as a whole.
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SECTION 6.15. [INTENTIONALLY OMITTED].
SECTION 6.16. [INTENTIONALLY OMITTED].
SECTION 6.17. NO DEFAULT. No Default or Event of Default has occurred
and is continuing.
SECTION 6.18. CAPITAL STRUCTURE.
(a) GENERALLY. The authorized capital stock of the Borrower consists
of (i) 20,000,000 shares of Class A Common Stock, $.01 par value, of which there
were 4,400,850 shares issued and outstanding as of December 31, 2001 and no
shares held in the treasury of the Borrower; (ii) 200,000 shares of Class B
Common Stock, $.01 par value, of which there were 200,000 shares issued and
outstanding as of December 31, 2001 and no shares held in the treasury of the
Borrower; and (iii) 2,000,000 shares of Preferred Stock, no par value, of which
10,000 shares were issued and outstanding as of December 31, 2001 and no shares
held in the treasury of the Borrower. All outstanding shares of the Borrower's
Class A and Class B Common Stock and Preferred Stock are duly authorized,
validly issued, fully paid and nonassessable and are not subject to preemptive
rights created by statute, the Articles of Incorporation or Bylaws of the
Borrower or any agreement or document to which the Borrower is a party or by
which it is bound. As of December 31, 2001 the Borrower had remaining a reserve
of an aggregate of 1,166,711 shares, 68,956 shares and 25,000 shares,
respectively, of the Borrower's Class A Common Stock for issuance to employees
pursuant to the Borrower's 1997 Employee Stock Option Plan (the "STOCK OPTION
PLAN"), the Borrower's Amended and Restated Executive and Director Stock Option
Agreements ("EXECUTIVE OPTION AGREEMENTS") and the Borrower's ▇▇▇▇▇▇ Industrial
Group, Inc. Nonemployee Directors' Compensation Plan (the "BORROWER DIRECTOR
PLAN"). The Borrower may also issue "payment-in-kind" Preferred Stock in lieu of
cash dividends on its outstanding Preferred Stock. Schedule 6.18 sets forth for
each Person who held options to acquire shares of the Borrower's Class A or
Class B Common Stock, or any other capital stock of the Borrower, in each case
at December 31, 2001 the name of the holder of such option, the number of shares
subject to such option, the exercise price of such option, the number of shares
as to which such option was vested at such date and the vesting schedule for
such option.
(b) OBLIGATIONS WITH RESPECT TO CAPITAL STOCK. Except as set forth in
Section 6.18(a), as of December 31, 2001, there are no equity securities,
partnership interests or similar ownership interests of any class of the
Borrower, or any securities exchangeable or convertible into or exercisable for
such equity securities, partnership interests or similar ownership interests,
issued, reserved for issuance or outstanding. Except for the Bank Warrants
listed on Schedule 6.18 and as set forth in Section 6.18(a), as of December 31,
2001, there are no options, warrants, equity securities, partnership interests
or similar ownership interests, calls, rights (including preemptive rights),
commitments or agreements of any character to which the Borrower or any of its
Subsidiaries is a party or by which it is bound obligating the Borrower or any
of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered
or sold, or repurchase, redeem or otherwise acquire, or cause the repurchase,
redemption or acquisition, of any shares of capital stock, partnership interests
or similar ownership interests of the Borrower or any of its Subsidiaries or
obligating the Borrower or any of its Subsidiaries to grant, extend, accelerate
the
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vesting of or enter into any such option, warrant, equity security, call, right,
commitment or agreement.
SECTION 7. CONDITIONS PRECEDENT.
The obligation of the Lenders to make any Loan or of the Agent to issue
any Letter of Credit under this Agreement is subject to the following conditions
precedent:
SECTION 7.1. ALL ADVANCES. As of the time of the making of each Loan
and the issuance of each Letter of Credit (including the initial Loan and the
initial Letter of Credit) hereunder:
(a) each of the representations and warranties set forth in
Section 6 hereof and the Applications shall be true and correct in all
material respects as of such time, except to the extent the same relate
expressly to an earlier date;
(b) the Borrower shall be in compliance with all of the terms
and conditions hereof, and no Default or Event of Default shall have
occurred and be continuing hereunder;
(c) in the case of each Revolving Loan, Swing Loan or Letter
of Credit, after giving effect to such extension of credit, the
aggregate principal amount outstanding on all Revolving Loans, Swing
Loans and L/C Obligations shall not exceed the lesser of (i) the
Available Revolving Credit Commitments then in effect or (ii) the
Borrowing Base as then determined and computed;
(d) in the case of each Swing Loan, after giving effect to
such extension of credit, the aggregate principal amount of all Swing
Loans shall not exceed the Swing Line Commitment then in effect;
(e) such extension of credit shall not violate any order,
judgment or decree of any court or other authority or any provision of
law or regulation applicable to the Agent or any Lender (including,
without limitation, Regulation U of the Board of Governors of the
Federal Reserve System) as then in effect; and
(f) in the case of the issuance of any Letter of Credit, the
Agent shall have received a properly completed Application therefor and,
in the case of an extension or increase in the amount of the Letter of
Credit, the Agent shall have received a written request therefor, in a
form acceptable to the Agent, with such Application or written request,
in each case to be accompanied by the fees required by this Agreement.
Each Borrower's request for any Loan or for any Letter of Credit, shall
constitute its warranty to the Agent and the Lenders on the date such credit is
to be extended as to the facts specified in paragraphs (a) and (b) of this
Section.
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SECTION 7.2. INITIAL ADVANCE. Prior to the making of the initial Loan
or the issuance of the initial Letter of Credit hereunder, the following
conditions precedent shall also have been satisfied:
(a) the Agent shall have received the following for the
account of the Lenders (each to be properly executed and completed) and
the same shall have been approved as to form and substance by the
Lenders:
(i) the Notes;
(ii) the Collateral Documents and the UCC financing
statements requested by the Agent in connection therewith;
(iii) a date-down endorsement for each policy of title
insurance and all endorsements thereunder delivered in connection
with the Previous Credit Agreement in form and substance
acceptable to the Agent (which will, among other things, insure
over any survey exception) from the issuer of such policy or
another title insurance company acceptable to the Agent,
maintaining the existing level of coverage under each such
policy, PROVIDED that any such endorsements which are not
available at the time of the making of the initial Loan hereunder
will be delivered by the Borrower not later than 90 days after
the date hereof;
(iv) supplements to each mortgage delivered under the
Previous Credit Agreement, duly executed, reflecting the terms of
this Amended and Restated Credit Agreement;
(v) certified copies of resolutions of the Board of
Directors of the Borrower and each Guarantor authorizing the
execution and delivery of the Loan Documents delivered by them
and indicating the authorized signers of such Loan Documents;
(vi) copies of the articles of incorporation and by-laws
of the Borrower and each Guarantor certified as true and correct
by the Secretary or other appropriate officer of the Borrower or
such Guarantor, as the case may be;
(vii) a good standing certificate for the Borrower and
each Guarantor, dated as of a date no earlier than thirty days
prior to the date hereof, from the appropriate governmental
office in the jurisdiction of its incorporation; and
(viii) an incumbency certificate containing the name, title
and genuine signatures of the Borrower's Authorized
Representatives; and
(b) the Agent shall have received for the account of and
addressed to the Lenders the favorable written opinion of counsel for
the Borrower and certain Guarantors in form and substance acceptable to
the Agent and the Lenders;
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(c) the Agent shall have received from the Borrower
reimbursement for any expenses incurred in connection with the Loan
Documents or the Previous Credit Agreement (including, without
limitation, legal fees);
(d) the Agent shall have received (i) a certificate showing a
computation of the Borrower's compliance with the financial covenants
set forth herein as of a date and covering periods to be determined by
the Agent, such computation to be in form and substance reasonably
satisfactory to the Agent and otherwise in reasonable detail and (ii) a
Borrowing Base Certificate as of a date no less than five Business Days
prior to the Effective Date;
(e) the Liens granted to the Agent under the Collateral
Documents shall have been perfected in a manner satisfactory to each
Lender and its counsel;
(f) The Agent shall have received and approved as to form and
substance an internally prepared balance sheet for the Borrower and each
Subsidiary as at November 30, 2001 and an internally prepared income
statement and statement of retained earnings and cash flows for the
quarter then ended;
(g) the Lenders shall have received and approved the Approved
Base Case;
(h) the Borrower and the holders of the Bank Warrants shall
have executed and delivered amendments thereto in form satisfactory to
each such holder extending the Expiration Dates (as defined in the Bank
Warrants) to December 31, 2003; and
(i) the Agent shall have received for the account of the
Lenders such other agreements, instruments, documents, certificates and
opinions as the Agent or the Lenders may reasonably request.
SECTION 7.3. INITIAL LOANS. As described in the recitals hereto,
the initial Loans shall represent a continuation of the Previous Loans.
SECTION 8. COVENANTS.
The Borrower agrees that, so long as any Loans, Letters of Credit or
Commitments are available to or in use by the Borrower hereunder, except to the
extent compliance in any case or cases is waived in writing by the Required
Lenders:
SECTION 8.1. MAINTENANCE OF BUSINESS. The Borrower shall, and shall
cause each of its Subsidiaries to, preserve and keep in force and effect its
corporate existence (except to the extent such existence terminates in mergers
and consolidations permitted by Section 8.16 hereof) and all licenses, permits
and franchises necessary to the proper conduct of its business.
SECTION 8.2. MAINTENANCE OF PROPERTY. The Borrower will maintain,
preserve and keep those of its Properties material to its business in good
repair, working order and condition (ordinary wear and tear excepted) and will
from time to time make all needful and proper repairs,
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renewals, replacements, additions and betterments thereto so that at all times
the efficiency thereof shall be fully preserved and maintained, and will cause
each of their respective Subsidiaries to do so in respect of Property owned or
used by it.
SECTION 8.3. TAXES AND ASSESSMENTs. The Borrower will duly pay and
discharge, and will cause each of its Subsidiaries to duly pay and discharge,
all federal and other material taxes, rates, assessments, fees and governmental
charges upon or against it or its Properties, in each case before the same
become delinquent and before penalties accrue thereon, unless and to the extent
that the same are being contested in good faith and by appropriate proceedings
which prevent enforcement of the matter under contest and adequate reserves are
provided therefor.
SECTION 8.4. INSURANCE. The Borrower will insure and keep insured, and
will cause each of its Subsidiaries to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is of
a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Borrower will insure, and cause each of their respective
Subsidiaries to insure, such other hazards and risks (including employers' and
public liability risks) with other good and responsible insurance companies as
and to the extent usually insured by Persons similarly situated and conducting
similar businesses. The Borrower will upon request of the Agent furnish a
certificate setting forth in summary form the nature and extent of the insurance
maintained pursuant to this Section.
SECTION 8.5. FINANCIAL REPORTS. The Borrower will, and will cause each
of its Subsidiaries to, maintain a standard system of accounting in accordance
with GAAP, will permit the Agent, each Lender and their representatives to visit
and inspect the properties and assets (including books and records) of the
Borrower and its Subsidiaries at all reasonable times and will furnish to the
Agent, each Lender and their duly authorized representatives such information
respecting the business and financial condition of the Borrower and its
Subsidiaries as the Agent or such Lender may reasonably request; and without any
request, the Borrower will furnish to the Lenders:
(a) (i) as soon as available, and in any event within 45 days
after the close of each monthly fiscal period of the Borrower which is
also the end of a fiscal quarter of the Borrower and within 30 days
after the close of each other monthly fiscal period of the Borrower, a
copy of the balance sheet and statements of income of the Borrower and
its Subsidiaries for such period, and (ii) as soon as available, and in
any event within 45 days after the close of each monthly fiscal period
of the Borrower which is also the end of a fiscal quarter of the
Borrower, a copy of the statements of retained earnings and cash flows
of the Borrower and its Subsidiaries for such period, all prepared on a
consolidated basis and in reasonable detail showing in comparative form
the figures for the corresponding date and period in the previous fiscal
year, prepared by the Borrower in accordance with GAAP (subject to
normal year-end audit adjustments and the absence of notes) and
certified to by the chief financial officer of the Borrower;
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(b) as soon as available, and in any event within 90 days
after the close of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its Subsidiaries as of
the close of such fiscal year and the consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries
for such period, and accompanying notes thereto, all in reasonable
detail showing in comparative form the figures for the previous fiscal
year, accompanied by an unqualified opinion thereon of KPMG LLP or
another firm of independent public accountants of recognized national
standing, selected by the Borrower and satisfactory to the Agent, to the
effect that the financial statements have been prepared in accordance
with GAAP and present fairly in accordance with GAAP the consolidated
financial condition of the Borrower and its Subsidiaries as of the close
of such fiscal year and the results of their operations and cash flows
for the fiscal year then ended and that an examination of such accounts
in connection with such financial statements has been made in accordance
with generally accepted auditing standards and, accordingly, such
examination included such tests of the accounting records and such other
auditing procedures as were considered necessary in the circumstances;
(c) if any Lender so requests, the Borrower, not later than 10
days after receipt thereof, a copy of any management letters on internal
accounting controls of the Borrower or any Subsidiary prepared by its
independent public accountants;
(d) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports the Borrower
sends to its shareholders, and copies of all other regular, periodic and
special reports (other than SEC Form 3, Form 4, Form 5, Form S-8 or
similar administrative reports) and all registration statements the
Borrower files with the Securities and Exchange Commission or any
successor thereto, or with any national securities exchanges;
(e) promptly after knowledge thereof shall have come to the
attention of any responsible officer of the Borrower, written notice of
any threatened or pending litigation or governmental proceeding or labor
controversy against the Borrower or any Subsidiary which, if adversely
determined, would have a material adverse effect on the financial
condition, Properties, business or operations of the Borrower and its
Subsidiaries taken as a whole or of the occurrence of any Default or
Event of Default hereunder; and
(f) as soon as available, but in any event within 3 Business
Days following the close of each weekly accounting period of the
Borrower, a written certificate signed by the Borrower's chief financial
officer showing in reasonable detail the computation of the Borrowing
Base as of the close of such weekly accounting period, such certificate
to be in form and substance reasonably acceptable to the Agent and the
Required Banks (it being understood, however, that Eligible Inventory
need only be computed within 30 days after the last day of each month).
Each of the financial statements furnished to the Lenders pursuant to
clauses (a) and (b) of this Section shall be accompanied by a written
certificate in the form attached hereto as Exhibit E signed by the chief
financial officer of the Borrower to the effect that to the best of the
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chief financial officer's knowledge and belief no Default or Event of Default is
continuing as of the close of the period covered by such statements or, if any
such Default or Event of Default is continuing as of the close of such period,
setting forth a description of such Default or Event of Default and specifying
the action, if any, taken by the Borrower to remedy the same. Such certificate
shall also set forth the calculations supporting such statements in respect of
Sections 8.6, 8.7, 8.8, 8.9 and 8.10 of this Agreement.
The Borrower will, and will cause each Subsidiary to, permit the Agent,
the Lenders and their duly authorized representatives to visit and inspect any
of the Properties of the Borrower and its Subsidiaries, to examine all of their
books of account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants (and by
this provision the Borrower authorizes such accountants to discuss with the
Lenders (and such Persons as any Lender may designate) the finances and affairs
of the Borrower and its Subsidiaries) all at such reasonable times and as often
as may be reasonably requested.
SECTION 8.6. INTEREST COVERAGE RATIO. The Borrower will, as of the
last day of each monthly accounting period of the Borrower ending on or about
any date specified below, maintain an Interest Coverage Ratio as of such date of
not less than:
INTEREST COVERAGE RATIO
PERIOD ENDING ON OR ABOUT SHALL NOT BE LESS THAN
February 28, 2002 0.15 to 1.0
March 31, 2002 0.95 to 1.0
April 30, 2002 0.90 to 1.0
May 31, 2002 0.90 to 1.0
June 30, 2002 1.10 to 1.0
July 31, 2002 0.90 to 1.0
August 31, 2002 0.80 to 1.0
September 30, 2002 1.0 to 1.0
October 31, 2002 0.90 to 1.0
November 30, 2002 0.90 to 1.0
December 31, 2002 0.90 to 1.0
January 31, 2003 0.90 to 1.0
February 28, 2003 0.90 to 1.0
March 31, 2003 0.90 to 1.0
April 30, 2003 0.95 to 1.0
May 31, 2003 1.0 to 1.0
June 30, 2003 1.05 to 1.0
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SECTION 8.7. CASH FLOW LEVERAGE RATIO. The Borrower shall not, at any
time during any monthly accounting period of the Borrower ending on or about any
date specified below, permit the Cash Flow Leverage Ratio at any time during
such monthly accounting period to be greater than:
CASH FLOW LEVERAGE
RATIO SHALL NOT BE
PERIOD ENDING ON OR ABOUT GREATER THAN
February 28, 2002 7.75 to 1.0
March 31, 2002 4.95 to 1.0
April 30, 2002 4.65 to 1.0
May 31, 2002 4.75 to 1.0
June 30, 2002 4.45 to 1.0
July 31, 2002 4.60 to 1.0
August 31, 2002 4.85 to 1.0
September 30, 2002 4.60 to 1.0
October 31, 2002 4.60 to 1.0
November 30, 2002 4.65 to 1.0
December 31, 2002 4.70 to 1.0
January 31, 2003 4.85 to 1.0
February 28, 2003 4.85 to 1.0
March 31, 2003 4.85 to 1.0
April 30, 2003 4.40 to 1.0
May 31, 2003 4.25 to 1.0
June 30, 2003 4.20 to 1.0
SECTION 8.8. EBITDA. The Borrower will maintain EBITDA for the period
specified below in an amount not less than the sum indicated to the right of
such period below:
EBITDA SHALL NOT
FROM AND INCLUDING TO AND INCLUDING BE LESS THAN:
January 1, 2002 February 28, 2002 $ 1,175,000
January 1, 2002 March 31, 2002 $ 2,745,000
January 1, 2002 April 30, 2002 $ 3,750,000
January 1, 2002 May 31, 2002 $ 4,500,000
January 1, 2002 June 30, 2002 $ 5,865,000
January 1, 2002 July 31, 2002 $ 6,485,000
January 1, 2002 August 31, 2002 $ 7,040,000
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EBITDA SHALL NOT
FROM AND INCLUDING TO AND INCLUDING BE LESS THAN:
January 1, 2002 September 30, 2002 $ 8,465,000
January 1, 2002 October 31, 2002 $ 9,150,000
January 1, 2002 November 30, 2002 $ 9,835,000
January 1, 2002 December 31, 2002 $ 10,700,000
February 1, 2002 January 31, 2003 $ 10,195,000
March 1, 2002 February 28, 2003 $ 10,155,000
April 1, 2002 March 31, 2003 $ 10,120,000
May 1, 2002 April 30, 2003 $ 10,520,000
June 1, 2002 May 31, 2003 $ 10,750,000
July 1, 2002 June 30, 2003 $ 10,900,000
SECTION 8.9. FIXED CHARGE COVERAGE RATIO. The Borrower will not, as of
the last day of each monthly accounting period of the Borrower ending on or
about any date specified below, permit the Fixed Charge Coverage Ratio to be
less than:
FIXED CHARGE LEVERAGE
RATIO SHALL NOT BE
PERIOD ENDING ON OR ABOUT GREATER THAN
February 28, 2002 0.90 to 1.0
March 31, 2002 1.35 to 1.0
April 30, 2002 1.20 to 1.0
May 31, 2002 1.15 to 1.0
June 30, 2002 1.25 to 1.0
July 31, 2002 1.10 to 1.0
August 31, 2002 1.05 to 1.0
September 30, 2002 1.15 to 1.0
October 31, 2002 1.05 to 1.0
November 30, 2002 1.05 to 1.0
December 31, 2002 1.05 to 1.0
January 31, 2003 0.95 to 1.0
February 28, 2003 0.95 to 1.0
March 31, 2003 0.95 to 1.0
April 30, 2003 1.0 to 1.0
May 31, 2003 1.0 to 1.0
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FIXED CHARGE LEVERAGE
RATIO SHALL NOT BE
PERIOD ENDING ON OR ABOUT GREATER THAN
June 30, 2003 1.0 to 1.0
SECTION 8.10. CAPITAL EXPENDITUES. The Borrower will not, nor will it
permit any Subsidiary to, expend or (without duplication) become obligated to
expend, in each case for Capital Expenditures aggregating for the Borrower and
its Subsidiaries (taken together) in excess of $3,500,000 during fiscal 2002 and
$2,000,000 during fiscal 2003.
SECTION 8.11. INDEBTEDNESS. The Borrower will not, nor will it permit
any of its Subsidiaries to, issue, incur, assume, create or have outstanding any
Indebtedness; PROVIDED, HOWEVER, that the foregoing provisions shall not
restrict nor operate to prevent:
(a) the Obligations;
(b) purchase money indebtedness and Capitalized Lease
Obligations secured by Liens permitted by Section 8.12(d) hereof in an
aggregate amount which does not exceed $3,000,000 at any one time
outstanding;
(c) intercompany borrowings by and from the Borrower and its
Subsidiaries;
(d) indebtedness secured by Liens permitted by Section 8.12(e)
hereof in an aggregate amount which does not exceed $1,000,000 at any
one time outstanding;
(e) unsecured indebtedness in an aggregate principal amount
not to exceed $1,500,000 at any one time outstanding in favor of vendors
or suppliers other than Deere or Caterpillar representing the extension,
with the consent of the creditor, beyond the normal due date (but not
beyond 360 days from invoice) of trade credit incurred in the ordinary
course of business;
(f) unsecured Subordinated Debt;
(g) the liability of ▇▇▇▇▇▇ Metalcraft Co. of South Carolina
for the currently outstanding indebtedness of SMP to Little River
Electric Cooperative, Inc. ("LITTLE RIVER") evidenced by that certain
Mortgage Note of SMP dated as of November 22, 1996 payable to the order
of Little River in the face principal amount of $400,000 PROVIDED such
liability at no time aggregates in excess of $400,000; and
(h) unsecured indebtedness not otherwise permitted by this
Section 8.11 provided the aggregate amount at any one time outstanding
does not exceed $100,000.
SECTION 8.12. LIENS. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur or permit to exist any Lien of any kind on
any Property owned by the Borrower or
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any such Subsidiary; PROVIDED, HOWEVER, that this Section shall not apply to nor
operate to prevent:
(a) Liens arising by statute in connection with worker's
compensation, unemployment insurance, old age benefits, social security
obligations, taxes, assessments, statutory obligations or other similar
charges, good faith cash deposits in connection with tenders, contracts
or leases to which the Borrower or any of its Subsidiaries is a party or
other cash deposits required to be made in the ordinary course of
business, provided in each case that the obligation is not for borrowed
money and that the obligation secured is not overdue or, if overdue, is
being contested in good faith by appropriate proceedings which prevent
enforcement of the matter under contest and adequate reserves have been
established therefor;
(b) mechanics', workmen's, materialmen's, landlords',
carriers', or other similar Liens arising in the ordinary course of
business with respect to obligations which are not overdue or which are
being contested in good faith by appropriate proceedings which prevent
enforcement of the matter under contest;
(c) the pledge of assets for the purpose of securing an
appeal, stay or discharge in the course of any legal proceeding,
provided that the aggregate amount of liabilities of the Borrower and
its Subsidiaries secured by a pledge of assets permitted under this
clause, including interest and penalties thereon, if any, shall not be
in excess of $250,000 at any one time outstanding;
(d) Liens securing indebtedness permitted by Section 8.11(b)
hereof in respect of Property now owned or hereafter acquired by the
Borrower or any of its Subsidiaries (not extending to any other
Property), or Liens on Property so acquired (not extending to any other
Property) existing at the time of acquisition thereof, or renewals,
extensions and refundings of any such Liens (not extending to any other
Property);
(e) any Lien existing on any Property (other than (i) shares
of stock in any Subsidiary, (ii) receivables, inventory and similar
working capital assets and (iii) patents, trademarks and similar
intangibles) prior to the acquisition thereof by the Borrower or any
Subsidiary, provided that such Lien is not created in contemplation of
or in connection with such acquisition;
(f) Liens on the real estate of ▇▇▇▇▇▇ Metalcraft Co. of South
Carolina in ▇▇▇▇▇ Path, Abbeville County, South Carolina and the
buildings and other improvements situated on such real estate securing
the indebtedness permitted by Section 8.11(g) hereof PROVIDED such liens
do not in any event encumber any trade fixtures or similar equipment;
(g) the Liens described on Schedule 8.12 hereof; and
(h) with respect to real property, easements, rights of way,
reservations and other minor defects or irregularities in title which do
not materially impair the use thereof for the purposes for which it is
held by the Borrower or any of its Subsidiaries.
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SECTION 8.13. INVESTMENTS, LOANS, ADVANCES AND GUARANTIES. The Borrower
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances (other
than for travel advances and other similar cash advances made to employees in
the ordinary course of business) to, any other Person, or be or become liable as
endorser, guarantor, surety or otherwise for any debt, obligation or undertaking
of any other Person, or otherwise agree to provide funds for payment of the
obligations of another, or supply funds thereto or invest therein or otherwise
assure a creditor of another against loss or apply for or become liable to the
issuer of a letter of credit which supports an obligation of another, or
subordinate any claim or demand it may have to the claim or demand of any other
Person; PROVIDED, HOWEVER, that the foregoing provisions shall not apply to nor
operate to prevent:
(a) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America, provided that any such obligations shall mature within one year
of the date of issuance thereof;
(b) investments in commercial paper rated at least P-1 by
▇▇▇▇▇'▇ Investors Services, Inc. and at least A-1 by Standard & Poor's
Corporation maturing within 270 days of the date of issuance thereof;
(c) investments in certificates of deposit issued by any
United States commercial bank having capital and surplus of not less
than $100,000,000 which have a maturity of one year or less;
(d) endorsement of items for deposit or collection of
commercial paper received in the ordinary course of business;
(e) intercompany loans and advances by and from the Borrower
and its Subsidiaries; and
(f) the Guaranties.
In determining the amount of investments, loans, advances and guarantees
permitted under this Section, investments shall always be taken at the original
cost thereof (regardless of any subsequent appreciation or depreciation
therein); loans and advances shall be taken at the principal amount thereof then
remaining unpaid; and guarantees shall be taken at the amount of obligations
guaranteed thereby.
In addition to the foregoing, neither the Borrower nor any Subsidiary
will, after the Effective Date, (i) create or become a party to the creation of
any special-purpose vehicle or entity, whether or not the Borrower or any
Subsidiary owns an equity interest therein, (ii) become a partner of any general
or limited partnership or a member of any limited liability Company or similar
Person, or (iii) enter into any agreement pursuant to which it will be allocated
any profits or losses of any Person, whether or not it holds an equity interest
of any type therein.
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SECTION 8.14. LEASES. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any arrangement with any bank, insurance company
or any other lender or investor providing for the leasing by the Borrower or any
such Subsidiary of any Property theretofore owned by it and which has been or is
to be sold or transferred by such owner to such lender or investor.
(b) OPERATING LEASES. The Borrower shall not, nor shall it
permit any of its Subsidiaries to, acquire the use or possession of any Property
under a lease or similar arrangement, whether or not the Borrower or any of its
Subsidiaries have the express or implied right to acquire title to or purchase
such Property, at any time if, after giving effect thereto, the aggregate amount
of fixed rentals and other consideration payable by the Borrower and its
Subsidiaries under all such leases and similar arrangements would exceed
$7,000,000 during any fiscal year of the Borrower.
SECTION 8.15. DIVIDENDS AND CERTAIN OTHER RESTRICTED PAYMENTS. The
Borrower will not (a) declare or pay any dividends on or make any other
distributions in respect of any class or series of its capital stock or (b)
directly or indirectly purchase, redeem or otherwise acquire or retire any of
its capital stock, PROVIDED, HOWEVER, that the foregoing shall neither apply to
nor operate to prevent the Borrower's expenditure of up to $63,000 in the
aggregate to redeem fractional shares of its common stock resulting from a
previous reverse stock split of the Borrower.
SECTION 8.16. MERGERS, CONSOLIDATIONS AND SALES. The Borrower will not,
and will not permit any of its Subsidiaries to, be a party to any merger or
consolidation, or sell, transfer, lease or otherwise dispose of any operating
unit or division or any rights to any trade name or similar intangible or all or
any substantial part of its Property (except for sales of inventory in the
ordinary course of business), or in any event sell or discount (with or without
recourse) any of its notes or accounts receivable; PROVIDED, HOWEVER, that:
(a) any Subsidiary of the Borrower may merge or consolidate
with or into the Borrower or any Wholly Owned Subsidiary of the
Borrower; PROVIDED THAT in any such merger or consolidation involving
the Borrower, the Borrower shall be the surviving or continuing
corporation, or, in the case of any other merger or consolidation of a
Subsidiary and a Wholly Owned Subsidiary of the Borrower, such Wholly
Owned Subsidiary shall be the continuing or surviving corporation; and
PROVIDED, FURTHER, that, in the case of such a merger or consolidation
involving a Guarantor, the net worth of the continuing or surviving
corporation shall not be less than the net worth of such Guarantor
immediately prior to such merger or consolidation;
(b) any Subsidiary may in the ordinary course of its business
sell, lease or otherwise dispose of all or any substantial part of its
equipment to the Borrower or any Wholly Owned Subsidiary of the
Borrower; and
(c) the Borrower may merge with a Wholly Owned Subsidiary
incorporated in Delaware and directly owned by the Borrower solely for
the purpose of changing the
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Borrower's state of incorporation to Delaware, with such Wholly Owned
Subsidiary surviving such merger, PROVIDED THAT:
(i) at the time of such merger, no Default or Event of
Default shall occur or be continuing;
(ii) such Wholly Owned Subsidiary shall have acknowledged
in writing (in form and substance reasonably satisfactory to the
Agent and Required Lenders) its assumption of all the Borrower's
obligations under the Loan Documents to the same extent, with the
same force and effect, as if such Wholly Owned Subsidiary were
originally the Borrower identified and defined therein;
(iii) the Agent shall have received an opinion of counsel
of the Borrower, and such other assurances that the Agent or
Required Lenders shall reasonably require, to confirm that such
merger has been effected in accordance with all applicable laws
and that the foregoing conditions set forth in this subsection
(c) have been satisfied; and
(iv) such merger shall have no adverse effect on the
financial condition Properties, business or operations the
Borrower or any Subsidiary or on the ability of any Subsidiary to
perform or the Agent's ability to enforce performance of the
obligations of any of them under the Loan Documents.
The term "substantial" as used herein shall mean the sale, transfer, lease or
other disposition in any fiscal year of five percent (5%) or more of the
Properties of the Borrower and its Subsidiaries taken as a whole.
SECTION 8.17. ACQUISITIONS. The Borrower will not, and will not permit
any of its Subsidiaries to, make or commit to make any Acquisitions.
SECTION 8.18. MAINTENANCE OF SUBSIDIARIES. The Borrower will not
assign, sell or transfer, or permit any of its Subsidiaries to issue, assign,
sell or transfer, any shares of capital stock of a Subsidiary, PROVIDED that the
foregoing shall not operate to prevent the issuance, sale and transfer to any
person of any shares of capital stock of a Subsidiary solely for the purpose of
qualifying, and to the extent legally necessary to qualify, such person as a
director of such Subsidiary.
SECTION 8.19. FORMATION OF SUBSIDIARIES. In the event any Subsidiary is
formed or acquired after the date hereof, the Borrower shall within thirty (30)
Business Days thereof (x) furnish an update to Schedule 6.2 hereof to reflect
such new Subsidiary and (y) cause such newly-formed or acquired Subsidiary to
execute a Guaranty and execute such Collateral Documents to the extent required
by Section 4 hereof (on terms substantially similar to those executed in
connection with this Agreement) as the Agent may then require granting the Agent
for the benefit of the Lenders a security interest in and lien on the personal
property of such Subsidiary as collateral security for the Notes and the other
Obligations, as well as the Hedging Liability, together with documentation
(including a legal opinion) similar to that described in Section 7.2 hereof
relating to the authorization for, execution and delivery of, and validity of
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such Subsidiary's obligations as a Guarantor hereunder and otherwise under its
Loan Documents in form and substance satisfactory to the Agent and such other
instruments, documents, certificates and opinions as are required by the Agent
in connection therewith.
SECTION 8.20. ERISA. The Borrower will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed might result
in the imposition of a Lien against any material portion of its Properties. The
Borrower will, and will cause each of its Subsidiaries to, promptly notify the
Lenders of (i) the occurrence of any reportable event (as defined in ERISA) with
respect to a Plan, (ii) receipt of any notice from the PBGC of its intention to
seek termination of any Plan or appointment of a trustee therefor, (iii) its
intention to terminate or withdraw from any Plan, and (iv) the occurrence of any
event with respect to any Plan which would result in the incurrence by the
Borrower or any of its Subsidiaries of any material liability, fine or penalty,
or any material increase in the contingent liability of the Borrower or any such
Subsidiary with respect to any post-retirement Welfare Plan benefit.
SECTION 8.21. COMPLIANCE WITH LAWS. The Borrower will, and will cause
each of its Subsidiaries to, comply in all respects with the requirements of all
federal, state and local laws, rules, regulations, ordinances and orders
applicable to or pertaining to the Properties or business operations of the
Borrower or any such Subsidiary, non-compliance with which could have a material
adverse effect on the financial condition, Properties, business or operations of
the Borrower and its Subsidiaries taken as a whole or would reasonably be
expected to result in a Lien upon any of their Property.
SECTION 8.22. BURDENSOME CONTRACTS WITH AFFILIATES. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into any contract,
agreement or business arrangement with any of its Affiliates (other than with
Wholly Owned Subsidiaries) on terms and conditions which are less favorable to
the Borrower or such Subsidiary than would be usual and customary in similar
contracts, agreements or business arrangements between Persons not affiliated
with each other.
SECTION 8.23. CHANGES IN FISCAL YEAR. Except to change (with notice to
the Lenders) its fiscal year to correspond with the calendar year, neither the
Borrower nor any of its Subsidiaries will change its fiscal year from its
present basis without the prior written consent of the Required Lenders.
SECTION 8.24. CHANGE IN THE NATURE OF BUSINESS. The Borrower will not,
and will not permit any of its Subsidiaries to, engage in any business or
activity if as a result the general nature of the business of the Borrower or
any such Subsidiary would be changed in any material respect from the general
nature of the business engaged in by the Borrower or such Subsidiary on the date
of this Agreement.
SECTION 8.25. USE OF LOAN PROCEEDS. The Borrower will use the Revolving
Credit and Term Loans solely to refinance currently outstanding Indebtedness and
to finance general corporate needs.
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SECTION 8.26. [INTENTIONALLY DELETED.].
SECTION 8.27. NET WORTH. The Borrower will, as of November 30, 2001,
have a Net Worth of not less than $3,000,000.
SECTION 8.28. BANK WARRANTS. Until the Obligations and Hedging
Liability have been fully paid and the Revolving Credit Commitments terminated,
the Borrower will take such actions as may be necessary from time to time
(including, without limitation, extending the expiration dates of the Bank
Warrants) to allow the Bank Warrants to continue to be exercisable by the
holders thereof and their permitted successors and assigns.
SECTION 8.29. CLASS A COMMON STOCK. The Borrower shall at all times
maintain, in reserve, and keep available for issuance such number of authorized
shares of Class A Common Stock as may at any time be issuable upon exercise of
the Bank Warrants, solely for the purpose of issue upon the exercise of the Bank
Warrants.
SECTION 8.30. ISSUANCE OF DILUTIVE EQUITY. The Borrower will not,
during the period commencing January 1, 2000 and ending December 31, 2003 (1)
issue, deliver or authorize the issuance of, offer, pledge, sell, contract to
sell, sell any option, subscription, rights, warrants or contract to purchase,
purchase any option, subscription, rights, warrants or contract to sell, grant
any option, subscription, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Class A Common Stock or Class
B Common Stock or any securities convertible into or exercisable or exchangeable
for Class A Common Stock or Class B Common Stock, or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Class A Common Stock or Class B Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Class A Common Stock or Class B Common Stock or such
other securities, in cash or otherwise, or enter into other agreements or
commitments of any character obligating it to issue any such shares or
convertible securities, except for (i) the issuance of Class A Common Stock in
exchange for Class B Common Stock outstanding as of December 31, 1999, in
accordance with the Borrower's Articles of Incorporation, (ii) the issuance of
Class A Common Stock upon exercise of the options to purchase Class A Common
Stock outstanding on December 31, 1999, and described on Schedule 6.18 hereto,
(iii) the issuance of options to purchase Class A Common Stock for bona fide
compensatory purposes pursuant to the Borrower's 1997 Stock Option Plan, or (iv)
the issuance of options for bona fide compensatory purposes pursuant to the
Borrower's ▇▇▇▇▇▇ Industrial Group, Inc. Nonemployee Directors' Compensation
Plan. The Borrower will not seek to increase the number of shares of Class A
Common Stock authorized or issuable under the 1997 Stock Option Plan or the
Amended and Restated Executive and Director Option Agreements, or the ▇▇▇▇▇▇
Industrial Group, Inc. Nonemployee Directors' Compensation Plan as of December
31, 1999, other than by an amount not exceeding 50,000 shares.
SECTION 8.31. FINANCIAL ADVISOR. The Borrower shall continue to engage
BBK, Ltd., at the Borrower's own cost and expense, as a financial advisor. The
nature and scope of the engagement shall be determined by the Borrower and such
financial advisor, PROVIDED the Borrower shall provide to the Agent and the
Lenders such information and details with respect to
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the engagement of the financial advisor and the nature and scope of its
engagement as may be requested by the Agent or any Lender, and PROVIDED FURTHER
that such engagement shall at least involve review of the Borrower's monthly
performance as compared to the Approved Base Case. As long as the Borrower's
performance is no worse than the Approved Base Case, the financial advisory
engagement may be a "desk top" review. The Borrower shall take reasonable steps
to assure that such financial advisor is available for discussions with the
Lenders regarding the financial advisor's findings and recommendations at such
times and intervals reasonably required by the Agent or the Required Lenders.
SECTION 9. EVENTS OF DEFAULT AND REMEDIES.
SECTION 9.1. Any one or more of the following shall constitute an
Event of Default hereunder:
(a) default in the payment when due of all or any part of the
principal of any Note (whether at the stated maturity thereof or at any
other time provided for in this Agreement) or default in the
reimbursement when due of amounts drawn under a Letter of Credit; or
(b) default for five (5) days or more in the payment when due
of all or any part of interest on any Note (whether at the stated
maturity thereof or at any other time provided for in this Agreement) or
of any fee or other amount payable by the Borrower hereunder or under
any Application; or
(c) default in the observance or performance of any covenant
set forth in Section 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.14,
8.15, 8.16, 8.17, 8.18, 8.25, 8.27, 8.28, 8.29, 8.30 or 8.31 hereof or
of any provision in any Loan Document dealing with the use, disposition
or remittance of the proceeds of Collateral or requiring the maintenance
of insurance thereon; or
(d) default in the observance or performance of any covenant
set forth in Section 8.5 hereof which is not remedied within ten (10)
days after written notice thereof to the Borrower by the Agent or any
Lender; or
(e) default in the observance or performance of any other
provision hereof or of any other Loan Document which is not remedied
within thirty (30) days after written notice thereof to the Borrower by
the Agent or any Lender; or
(f) any representation or warranty made by the Borrower herein
or in any other Loan Document, or in any statement or certificate
furnished by it pursuant hereto or thereto, or in connection with any
Loan made or Letter of Credit issued hereunder, proves untrue in any
material respect as of the date of the issuance or making thereof; or
(g) any event occurs or condition exists (other than those
described in subsections (a) through (f) above) which is specified as an
event of default under any of the other Loan Documents, or any of the
Loan Documents shall for any reason not be or
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shall cease to be in full force and effect or is declared to be null and
void, or any Guarantor shall purport to disavow, revoke, repudiate or
terminate its obligations thereunder, or any of the Collateral Documents
shall for any reason fail to create a valid and perfected first priority
Lien in favor of the Agent in any Collateral purported to be covered
thereby except as expressly permitted by the terms thereof, or any
Subsidiary takes any action for the purpose of terminating, repudiating
or rescinding any Loan Document executed by it or any of its obligations
thereunder; or
(h) default shall occur under any evidence of Indebtedness
aggregating $1,000,000 or more issued, assumed or guaranteed by the
Borrower or any Subsidiary or under any indenture, agreement or other
instrument under which the same may be issued, and such default shall
continue for a period of time sufficient to permit the acceleration of
the maturity of any such Indebtedness (whether or not such maturity is
in fact accelerated) or any such Indebtedness shall not be paid when due
(whether by lapse of time, acceleration or otherwise); or
(i) any judgment or judgments, writ or writs, or warrant or
warrants of attachment, or any similar process or processes in an
aggregate amount in excess of $250,000 shall be entered or filed against
the Borrower or any of its Subsidiaries or against any of their Property
and which remains unvacated, unbonded, unstayed or unsatisfied for a
period of thirty (30) days; or
(j) the Borrower or any member of its Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess $250,000
which it shall have become liable to pay to the PBGC or to a Plan under
Title IV of ERISA; or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Vested Liabilities in excess of $250,000
(collectively, a "MATERIAL PLAN") shall be filed under Title IV of ERISA
by the Borrower or any other member of its Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Material Plan or a proceeding
shall be instituted by a fiduciary of any Material Plan against the
Borrower or any member of its Controlled Group to enforce Section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within thirty (30) days thereafter; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that
any Material Plan must be terminated; or
(k) the Borrower or any Subsidiary makes any prepayment of
any principal or interest on any Subordinated Debt or otherwise makes
any payment or other distribution on account of the principal of or
interest on any indebtedness which payment or other distribution is
prohibited under the terms of any instrument subordinating such
indebtedness to the Obligations, or the Borrower or any Subsidiary
amends or modifies the terms relating to any Subordinated Debt or the
terms pursuant to which such Subordinated Debt is subordinated to the
Obligations without the prior written consent of the Required Lenders;
(l) a Change of Control shall occur; or
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(m) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part
of its Property, (v) institute any proceeding seeking to have entered
against it an order for relief under the United States Bankruptcy Code,
as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, or (vi) fail to contest in good faith any appointment or
proceeding described in this Section 9.1(m); or
(n) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any of its
Subsidiaries or any substantial part of any of their Property, or a
proceeding described in Section 9.1(m) shall be instituted against the
Borrower or any of its Subsidiaries, and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a
period of sixty (60) days.
SECTION 9.2. When any Event of Default described in clauses (a)
through (l), both inclusive, of Section 9.1 has occurred and is continuing, the
Agent shall, upon request of the Required Lenders, by notice to the Borrower,
take either or both of the following actions:
(a) terminate the obligations of the Lenders to extend any
further credit hereunder on the date (which may be the date thereof)
stated in such notice;
(b) declare the principal of and the accrued interest on the
Notes to be forthwith due and payable and thereupon the Notes, including
both principal and interest and all fees, charges and other amounts
payable hereunder, shall be and become immediately due and payable
without further demand, presentment, protest or notice of any kind.
SECTION 9.3. When any Event of Default described in clauses (m) or (n)
of Section 9.1 has occurred and is continuing, then the Notes, including both
principal and interest, and all fees, charges and other amounts payable
hereunder, shall immediately become due and payable without presentment, demand,
protest or notice of any kind, and the obligations of the Lenders to extend
further credit pursuant to any of the terms hereof shall immediately terminate.
SECTION 9.4. When any Event of Default, other than an Event of Default
described in subsections (m) or (n) of Section 9.1, has occurred and is
continuing, the relevant Borrower shall, upon demand of the Agent (which demand
shall be made upon the request of the Required Lenders), and when any Event of
Default described in subsections (m) or (n) of Section 9.1 has occurred the
Borrower shall, without notice or demand from the Agent, immediately pay to the
Agent the full outstanding amount of each Letter of Credit (such amount to be
held as cash collateral for the Borrower's obligations in respect of the Letters
of Credit), the Borrower
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agreeing to immediately make each such payment and acknowledging and agreeing
the Agent and the Lenders would not have an adequate remedy at law for failure
of the Borrower to honor any such demand and that the Agent shall have the right
to require the Borrower to specifically perform such undertaking whether or not
any draws had been made under any such Letter of Credit.
SECTION 10. THE AGENT.
SECTION 10.1. APPOINTMENT AND AUTHORIZATION. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers hereunder and under the Guaranties and the Applications
as are designated to the Agent by the terms hereof and thereof together with
such powers as are reasonably incidental thereto. The Lenders expressly agree
that the Agent is not acting as a fiduciary of the Lenders in respect of the
Loan Documents, the Borrower or otherwise, and nothing herein or in any of the
other Loan Documents shall result in any duties or obligations on the Agent or
any of the Lenders except as expressly set forth herein. The Agent may resign at
any time by sending twenty (20) days prior written notice to the Borrower and
the Lenders and may be removed by the Required Lenders upon twenty (20) days
prior written notice to the Borrower and the Lenders. In the event of any such
resignation or removal the Required Lenders may appoint a new agent after
consultation with the Borrower, which shall succeed to all the rights, powers
and duties of the Agent hereunder and under the Guaranties and Applications. Any
resigning or removed Agent shall be entitled to the benefit of all the
protective provisions hereof with respect to its acts as an agent hereunder, but
no successor Agent shall in any event be liable or responsible for any actions
of its predecessor. If the Agent resigns or is removed and no successor is
appointed, the rights and obligations of such Agent shall be automatically
assumed by the Required Lenders and (i) the Borrower shall be directed to make
all payments due each Lender hereunder directly to such Lender and (ii) the
Agent's rights in the Guaranties and Applications shall be assigned without
representation, recourse or warranty to the Lenders as their interests may
appear.
SECTION 10.2. RIGHTS AS A LENDER. The Agent has and reserves all of the
rights, powers and duties hereunder and under its Notes and the Guaranties and
Applications as any Lender may have and may exercise the same as though it were
not the Agent and the terms "LENDER" or "LENDERS" as used herein and in all of
such documents shall, unless the context otherwise expressly indicates, include
the Agent in its individual capacity as a Lender.
SECTION 10.3. STANDARD OF CARE. The Lenders acknowledge that they have
received and approved copies of the Guaranties and such other information and
documents concerning the transactions contemplated and financed hereby as they
have requested to receive and/or review. The Agent makes no representations or
warranties of any kind or character to the Lenders with respect to the validity,
enforceability, genuineness, perfection, value, worth or collectibility hereof
or of the Notes or the Guaranties or of any other documents called for hereby or
thereby. Neither the Agent nor any director, officer, employee, agent or
representative thereof shall in any event be liable for any clerical errors or
errors in judgment, inadvertence or oversight, or for action taken or omitted to
be taken by it or them hereunder or under the Guaranties or Applications or in
connection herewith or therewith except for its or their own gross negligence or
willful misconduct. The Agent shall incur no liability under or in respect of
this Agreement or
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the Guaranties or Applications by acting upon any notice, certificate, warranty,
instruction or statement (oral or written) of anyone (including anyone in good
faith believed by it to be authorized to act on behalf of the Borrower), unless
it has actual knowledge of the untruthfulness of same. The Agent may execute any
of its duties hereunder by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Lenders for the default or misconduct of any
such agents or attorneys-in-fact selected with reasonable care except for the
gross negligence or willful misconduct of its employees. The Agent shall be
entitled to advice of counsel concerning all matters pertaining to the agencies
hereby created and its duties hereunder, and shall incur no liability to anyone
and be fully protected in acting upon the advice of such counsel. The Agent
shall be entitled to assume that no Default or Event of Default exists unless
notified to the contrary by a Lender. The Agent shall in all events be fully
protected in acting or failing to act in accord with the instructions of the
Required Lenders. The Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
the Agent by reason of taking or continuing to take any such action. The Agent
may treat the owner of any Note as the holder thereof until written notice of
transfer shall have been filed with the Agent signed by such owner in form
satisfactory to the Agent. Each Lender acknowledges that it has independently
and without reliance on the Agent or any other Lender and based upon such
information, investigations and inquiries as it deems appropriate made its own
credit analysis and decision to extend credit to the Borrower. It shall be the
responsibility of each Lender to keep itself informed as to the creditworthiness
of the Borrower and the Agent shall have no liability to any Lender with respect
thereto.
SECTION 10.4. COSTS AND EXPENSES. Each Lender agrees to reimburse the
Agent for all costs and expenses suffered or incurred by the Agent in performing
its duties hereunder and under the Guaranties and Applications, or in the
exercise of any right or power imposed or conferred upon the Agent hereby or
thereby, to the extent that the Agent is not promptly reimbursed for same by the
Borrower, all such costs and expenses to be borne by the Lenders ratably in
accordance with the amounts of their respective Commitments. If any Lender fails
to reimburse the Agent for such Lender's share of any such costs and expenses,
such costs and expenses shall be paid pro rata by the remaining Lenders, but
without in any manner releasing the defaulting Lender from its liability
hereunder.
SECTION 10.5. INDEMNITY. The Lenders, to the extent not prohibited by
applicable law, shall ratably indemnify and hold the Agent, and its directors,
officers, employees, agents or representatives harmless from and against any
liabilities, losses, costs and expenses suffered or incurred by them hereunder
or under the Guaranties or Applications or in connection with the transactions
contemplated hereby or thereby, regardless of when asserted or arising, except
to the extent they are promptly reimbursed for the same by the relevant Borrower
and except to the extent that any event giving rise to a claim was caused by the
gross negligence or willful misconduct of the party seeking to be indemnified.
If any Lender defaults in its obligations hereunder, its share of the
obligations shall be paid pro rata by the remaining Lenders, but without in any
manner releasing the defaulting Lender from its liability hereunder.
SECTION 10.6. INTEREST RATE HEDGING ARRANGEMENTS. By virtue of a
Lender's execution of this Agreement or an Assignment Agreement, as the case may
be, any Affiliate of such Lender
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with whom the Borrower has entered into an agreement creating Hedging Liability
shall be deemed a Lender party hereto for purpose of any reference in a Loan
Document to the parties for whom the Agent is acting, it being understood and
agreed that the rights and benefits of such Affiliate under the Loan Documents
consist exclusively of such Affiliate's right to share in payments and
collections out of the Collateral and the Guaranties as more fully set forth in
other provisions hereof.
SECTION 11. JOINT AND SEVERAL LIABILITY AND GUARANTIES.
SECTION 11.1. JOINT AND SEVERAL LIABILITY AND GUARANTIES. To induce the
Lenders to provide the credit described herein and in consideration of benefits
expected to accrue to each Guarantor by reason of the Commitments and for other
good and valuable consideration, receipt of which is hereby acknowledged, each
Subsidiary party hereto and each Subsidiary which executes and delivers a
Guaranty (each such Subsidiary being hereinafter referred to individually as a
"GUARANTOR" and collectively as the "GUARANTORS") hereby unconditionally and
irrevocably guarantee jointly and severally to the Agent, the Lenders, their
Affiliates and each other holder of any of the Obligations or Hedging Liability,
(x) the due and punctual payment of all present and future Obligations,
including, but not limited to, the due and punctual payment of principal of and
interest on the Loans and Reimbursement Obligations, as and when the same shall
become due and payable, whether at stated maturity, by acceleration or
otherwise, according to the terms hereof and thereof and (y) the due and
punctual payment of all present and future Hedging Liability as and when the
same shall become due and payable, whether at its stated maturity, by
acceleration or otherwise, according to the terms thereof (the Obligations and
Hedging Liability so guaranteed being hereinafter referred to collectively as
the "GUARANTEED OBLIGATIONS"). In case of failure by the Borrower punctually to
pay any Guaranteed Obligations, each Guarantor hereby unconditionally agrees
jointly and severally to make such payment or to cause such payment to be made
punctually as and when the same shall become due and payable, whether at stated
maturity, by acceleration or otherwise, and as if such payment were made by the
Borrower.
SECTION 11.2. GUARANTY UNCONDITIONAL. The obligations of each Guarantor
as a guarantor or joint and several obligor under the Loan Documents, the
instruments or documents governing any Hedging Liability (the loan documents and
such other instruments and documents governing the Hedging Liability being
hereinafter referred to collectively as the "GUARANTEED DEBT DOCUMENTS" and
individually as a "GUARANTEED DEBT DOCUMENT," including this Section 11, shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower or of any other
Guarantor under this Agreement or any other Guaranteed Debt Document or
by operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Guaranteed Debt Document;
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting, the
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Borrower, any other Guarantor, or any of their respective assets, or any
resulting release or discharge of any obligation of the Borrower or of
any other Guarantor contained in any Guaranteed Debt Document;
(d) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against the Agent, any Lender or any
other Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim or
demand or any exercise of, or failure to exercise, any rights or
remedies against the Borrower, any other Guarantor or any other Person
or Property;
(f) any application of any sums by whomsoever paid or
howsoever realized to any obligation of the Borrower, regardless of what
obligations of the Borrower remain unpaid;
(g) any invalidity or unenforceability relating to or against
the Borrower or any other Guarantor for any reason of this Agreement or
of any other Guaranteed Debt Document or any provision of applicable law
or regulation purporting to prohibit the payment by the Borrower or any
other Guarantor of the principal of or interest on any Note or any other
amount payable by them under the Guaranteed Debt Documents; or
(h) any other act or omission to act or delay of any kind by
the Agent, any Lender or any other Person or any other circumstance
whatsoever that might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the obligations of the
Guarantors under the Guaranteed Debt Documents.
SECTION 11.3. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. Each Guarantor's obligations under this Section 11 shall
remain in full force and effect until the Commitments are terminated and the
principal of and interest on the Notes and all other Guaranteed Obligations
shall have been paid in full. If at any time any payment of the principal of or
interest on any Note or any other amount payable by the Borrower under any of
the Guaranteed Debt Documents is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Borrower or of
any Guarantor, or otherwise, each Guarantor's obligations under this Section 11
with respect to such payment shall be reinstated at such time as though such
payment had become due but had not been made at such time.
SECTION 11.4. WAIVERS.
(a) GENERAL. Each Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by the Agent, any Lender or
any other Person against the Borrower, another Guarantor or any other Person.
(b) SUBROGATION AND CONTRIBUTION. Each Guarantor hereby agrees not to
exercise or enforce any right of exoneration, contribution, reimbursement,
recourse or subrogation available
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to such Guarantor against any Person liable for payment of the Guaranteed
Obligations, or as to any security therefor, unless and until the full amount
owing on the Guaranteed Obligations has been paid and the Commitments have
terminated; and the payment by such Guarantor of any amount pursuant to any of
the Guaranteed Debt Documents on account of credit extended to the Borrower
shall not in any way entitle such Guarantor to any right, title or interest
(whether by way of subrogation or otherwise) in and to any of the Guaranteed
Obligations or any proceeds thereof or any security therefor unless and until
the full amount owing on the Guaranteed Obligations has been paid and the
Commitments have terminated.
SECTION 11.5. LIMIT ON RECOVERY. Notwithstanding any other provision
hereof, the right of recovery against each Guarantor under this Section 11 shall
not (to the extent required by or as may be necessary or desirable to ensure the
enforceability against such Guarantor of its obligations hereunder or thereunder
in accordance with the laws of the jurisdiction of its incorporation or where it
carries on business) exceed (x) the amount which would render such Guarantor's
obligations under this Section 11 void or voidable under applicable law,
including without limitation fraudulent conveyance law minus (y) $1.00.
SECTION 11.6. STAY OF ACCELERATION. If acceleration of the time for
payment of any amount payable by the Borrower under this Agreement or any other
Loan Document is stayed upon the insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement or the other Guaranteed Debt Documents shall nonetheless be
payable jointly and severally by the Guarantors hereunder forthwith on demand by
the Agent made at the request of the Required Lenders.
SECTION 11.7. BENEFIT TO GUARANTORS. All of the Guarantors are engaged
in related businesses and integrated to such an extent that the financial
strength and flexibility of each Guarantor has a direct impact on the success of
each other Guarantor. Each Guarantor will derive substantial direct and indirect
benefit from the extension of credit hereunder.
SECTION 11.8. GUARANTOR COVENANTS. Each Guarantor shall take such
action as the Borrower is required by this Agreement to cause such Guarantor to
take, and shall refrain from taking such action as the Borrower is required by
this Agreement to prohibit such Guarantor from taking.
SECTION 12. MISCELLANEOUS.
SECTION 12.1. HOLIDAYS. If any payment of principal or interest on any
Note or any fee hereunder shall fall due on a day which is not a Business Day,
principal together with interest at the rate the Note bears for the period prior
to maturity or any fee at the rate such fee accrues shall continue to accrue
from the stated due date thereof to and including the next succeeding Business
Day, on which the same is payable.
SECTION 12.2. NO WAIVER, CUMULATIVE REMEDIES. No delay or failure on
the part of the Agent or any Lender or on the part of any other holder of any
Note in the exercise of any power or right shall operate as a waiver thereof,
nor as an acquiescence in any default, nor shall any single or partial exercise
of any power or right preclude any other or further exercise thereof, or
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the exercise of any other power or right, and the rights and remedies hereunder
of the Agent, each Lender and each other holder of any Note are cumulative to,
and not exclusive of, any rights or remedies which any of them would otherwise
have.
SECTION 12.3. WAIVERS, MODIFICATIONS AND AMENDMENTS. Any provision
hereof or of the Notes or the Guaranties may be amended, modified, waived or
released and any Default or Event of Default and its consequences may be
rescinded and annulled upon the written consent of the Required Lenders;
PROVIDED, HOWEVER, that without the consent of all Lenders no such amendment,
modification or waiver shall increase the amount or extend the terms of any
Lender's Commitment or increase the L/C Sublimit or reduce the interest rate
applicable to or extend the maturity (including any scheduled installment) of
its Notes or reduce the amount of the principal or interest or fees to which
such Lender is entitled hereunder or release any substantial (in value) part of
the collateral security afforded by the Collateral Documents (except in
connection with a sale or other disposition required to be effected by the
provisions hereof or of the Collateral Documents) or release any Guarantor or
change this Section or change the definition of "REQUIRED LENDERS" or change the
number of Lenders required to take any action hereunder or under the Guaranties.
No amendment, modification or waiver of the Agent's protective provisions shall
be effective without the prior written consent of the Agent.
SECTION 12.4. COSTS AND EXPENSES. The Borrower agrees to pay on demand
the costs and expenses of the Agent in connection with the negotiation,
preparation, execution and delivery of the Loan Documents and the other
instruments and documents to be delivered hereunder or thereunder or in
connection with the transactions contemplated hereby or thereby or in connection
with any consents hereunder or waivers or amendments hereto or thereto,
including the fees and expenses of Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, counsel for the
Agent, with respect to all of the foregoing (whether or not the transactions
contemplated hereby are consummated), and all costs and expenses (including
attorneys' fees), if any, incurred by the Agent, the Lenders or any other
holders of a Note in connection with a default under or the enforcement of the
Loan Documents or any other instrument or document to be delivered hereunder or
thereunder. The Borrower agrees to pay on demand all costs and expenses for
which it is liable in accordance with the preceding sentence in connection with
Letters of Credit issued for its account. The Borrower agrees to indemnify and
save the Lenders and the Agent harmless from any and all liabilities, losses,
costs and expenses (collectively, "INDEMNIFIED LIABILITIES") incurred by the
Lenders or the Agent in connection with any action, suit or proceeding brought
against the Agent or any Lender by any Person (but excluding attorneys' fees for
litigation solely between the Lenders to which the Borrower is not a party)
which arises out of the transactions contemplated or financed hereby or out of
any action or inaction by the Agent or any Lender hereunder or thereunder,
except for such thereof as is caused by the gross negligence or willful
misconduct of the party seeking to be indemnified. The Borrower agrees to
similarly indemnify and save the Lenders and the Agent harmless from any and all
indemnified liabilities as relate to Letters of Credit issued for its account.
The provisions of this Section and the protective provisions of Section 2 hereof
shall survive payment of the Notes.
SECTION 12.5. DOCUMENTARY TAXES. The Borrower agrees to pay on demand
any documentary, stamp or similar taxes payable in respect of this Agreement,
the Notes, the Applications, or any Guaranty including interest and penalties,
in the event any such taxes are
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assessed, irrespective of when such assessment is made and whether or not any
credit is then in use or available hereunder.
SECTION 12.6. SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein or in any other Loan Documents or in certificates given
pursuant hereto or thereto shall survive the execution and delivery of this
Agreement and shall continue in full force and effect with respect to the date
as of which they were made as long as any credit is in use or available
hereunder.
SECTION 12.7. SURVIVAL OF INDEMNITIES. All indemnities and other
provisions relative to reimbursement to the Lenders of amounts sufficient to
protect the yield of the Lenders with respect to the Loans and Letters of
Credit, including, but not limited to, Sections 1.3, 2.7, 2.8 and 2.9 hereof,
shall survive the termination of this Agreement and the payment of the Notes.
SECTION 12.8. NOTICES. Except as otherwise specified herein, all
notices hereunder shall be in writing (including cable or telecopy) and shall be
given to the relevant party at its address or telecopier number set forth below,
in the case of the Borrower, or on the appropriate signature page hereof, in the
case of the Lenders and the Agent, or such other address or telecopier number as
such party may hereafter specify by notice to the Agent and the Borrower given
by United States certified or registered mail or by telecopy. Notices hereunder
to the Borrower shall be addressed to the name of such Person at:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a confirmation of such telecopy has been received
by the sender, (ii) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the addresses specified in this Section; PROVIDED THAT any notice given pursuant
to Section 1 or Section 2 hereof shall be effective only upon receipt.
SECTION 12.9. HEADINGS. Section headings used in this Agreement are for
convenience of reference only and are not a part of this Agreement for any other
purpose.
SECTION 12.10. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. All rights, remedies
and powers provided in this Agreement and the Notes may be exercised only to the
extent that the exercise thereof does not violate any applicable mandatory
provisions of law, and all the provisions of this Agreement and the Notes are
intended to be subject to all applicable mandatory provisions of law
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which may be controlling and to be limited to the extent necessary so that they
will not render this Agreement or the Notes invalid or unenforceable.
SECTION 12.11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, and by different parties hereto on separate counterpart
signature pages, and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
SECTION 12.12. BINDING NATURE, GOVERNING LAW, ETC. This Agreement shall
be binding upon the Borrower and its successors and assigns, and shall inure to
the benefit of the Agent and the Lenders and the benefit of their successors and
assigns, including any subsequent holder of an interest in the Notes. This
Agreement and the rights and duties of the parties hereto shall be governed by,
and construed in accordance with, the internal laws of the State of
Illinois
without regard to principles of conflicts of laws. The Borrower may not assign
its rights hereunder without the written consent of the Lenders.
SECTION 12.13. ENTIRE UNDERSTANDING. This Agreement, together with the
Notes, constitute the entire understanding of the parties with respect to the
subject matter hereof and any prior agreements, whether written or oral, with
respect thereto are superseded hereby except for prior understandings related to
fees payable to the Agent upon the initial closing of the transactions
contemplated hereby.
SECTION 12.14. PARTICIPATIONS. Any Lender may, upon the prior written
consent of the Borrower (which consent shall not be unreasonably withheld),
grant participations in its extensions of credit hereunder to any other bank or
other lending institution (a "PARTICIPANT") PROVIDED that (i) no Participant
shall thereby acquire any direct rights under this Agreement, (ii) no Lender
shall agree with a Participant not to exercise any of such Lender's rights
hereunder without the consent of such Participant except for rights which under
the terms hereof may only be exercised by all Lenders and (iii) no sale of a
participation in extensions of credit shall in any manner relieve the selling
Lender of its obligations hereunder.
SECTION 12.15. ASSIGNMENT AGREEMENTS. Each Lender may, from time to time
upon at least five (5) Business Days' prior written notice to the Agent, assign
to other commercial lenders part of its rights and obligations under this
Agreement (including without limitation the indebtedness evidenced by any Note
then owned by such assigning Lender, together with an equivalent proportion of
the related Commitment for which such Note was issued) pursuant to written
agreements executed by such assigning Lender, such assignee lender or lenders,
the Borrower and the Agent, which agreements shall specify in each instance the
portion of the indebtedness evidenced by the Notes which is to be assigned to
each such assignee lender and the portion of the Commitments of the assigning
Lender to be assumed by it (the "ASSIGNMENT AGREEMENTS"); PROVIDED, HOWEVER,
that (i) any assignment hereunder shall be of the same percentage of such
Lender's Revolving Credit Note, Revolving Credit Commitment, Revolving Loans and
interests in Letters of Credit and Swing Loans, and Term Loan; (ii) unless the
Agent otherwise consents, the aggregate amount of the Commitments, Loans and
Notes of the assigning Lender being assigned pursuant to each such assignment
(determined as of the effective date of the relevant Assignment Agreement) shall
in no event be less than $5,000,000 and shall be an integral multiple of
$1,000,000; (iii) the Swing Loans and Swing Line Commitment shall only be
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assigned (if at all) in total; (iv) the Agent, each Lender originally party
hereto and the Borrower must each consent (such consent to not be unreasonably
withheld by any such party), to each such assignment to a party which was not an
original signatory of this Agreement (provided no such consent is required from
the Borrower (x) for any assignment to any Lender party hereto, whether an
original signatory of this Agreement or a party hereto by reason of an
Assignment Agreement, (y) for any assignment to any Affiliate of any such Lender
and (z) for any such assignment made during the continuance of any Event of
Default); and (v) the assigning Lender must pay to the Agent a processing and
recordation fee of $3,500 and any out-of-pocket attorneys' fees and expenses
incurred by the Agent in connection with such Assignment Agreement. Upon the
execution of each Assignment Agreement by the assigning Lender thereunder, the
assignee lender thereunder, the Borrower and the Agent and payment to such
assigning Lender by such assignee lender of the purchase price for the portion
of the indebtedness of the Borrower being acquired by it, (i) such assignee
lender shall thereupon become a "LENDER" for all purposes of this Agreement with
Commitments in the amounts set forth in such Assignment Agreement and with all
the rights, powers and obligations afforded a Lender hereunder, (ii) such
assigning Lender shall have no further liability for funding the portion of its
Commitments assumed by such other Lender and (iii) the address for notices to
such assignee Lender shall be as specified in the Assignment Agreement executed
by it. Concurrently with the execution and delivery of such Assignment
Agreement, the Borrower shall execute and deliver Notes to the assignee Lender
in the respective amounts of its Commitments under the Revolving Credit and
Swing Line and its Term Loans and new Notes to the assigning Lender in the
respective amounts of its Commitments under the Revolving Credit and its Term
Loans after giving effect to the reduction occasioned by such assignment, all
such Notes to constitute "NOTES" for all purposes of this Agreement.
SECTION 12.16. CONFIDENTIALITY. The Agent and each Lender shall hold in
confidence any material nonpublic information delivered or made available to
them by the Borrower or any Subsidiary. The foregoing to the contrary
notwithstanding, nothing herein shall prevent any Lender from disclosing any
information delivered or made available to it by the Borrower or any Subsidiary
(i) to any other Lender, (ii) to any other Person if reasonably incidental to
the administration of the credit contemplated hereby, (iii) upon the order of
any court or administrative agency, (iv) upon the request or demand of any
regulatory agency or authority, (v) which has been publicly disclosed other than
as a result of a disclosure by the Agent or any Lender which is not permitted by
this Agreement, (vi) in connection with any litigation to which the Agent, any
Lender, or any of their respective Affiliates may be a party, along with the
Borrower, any Subsidiary or any of their respective Affiliates, (vii) to the
extent reasonably required in connection with the exercise of any right or
remedy under this Agreement, the other L/C Documents or otherwise, (viii) to
such Lender's legal counsel and financial consultants and independent auditors,
and (ix) to any actual or proposed participant or assignee of all or part of its
rights under the credit contemplated hereby provided such participant or
assignee agrees in writing to be bound by the duty of confidentiality under this
Section to the same extent as if it were a Lender hereunder.
SECTION 12.17. RELEASE OF CLAIMS. TO INDUCE THE LENDERS AND THE AGENT TO
ENTER INTO THIS AGREEMENT, THE BORROWER AND THE GUARANTORS HEREBY RELEASE,
ACQUIT, AND FOREVER DISCHARGE THE LENDERS, THE AGENT AND THEIR AFFILIATES AND
THEIR
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RESPECTIVE OFFICERS, DIRECTORS, AGENTS, ATTORNEYS, ADVISORS, CONSULTANTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL LIABILITIES, CLAIMS, DEMANDS,
ACTIONS, AND CAUSES OF ACTION OF ANY KIND (IF THERE ARE ANY), WHETHER ABSOLUTE
OR CONTINGENT, DUE OR TO BECOME DUE, DISPUTED OR UNDISPUTED, AT LAW OR IN
EQUITY, THAT THEY NOW HAVE OR EVER HAD AGAINST THE LENDERS, THE AGENT AND THE
OTHER PARTIES IDENTIFIED ABOVE, OR ANY ONE OR MORE OF THEM INDIVIDUALLY, UNDER
OR IN CONNECTION WITH THE PREVIOUS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS AS DEFINED THEREIN, OR THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS AS DEFINED HEREIN.
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Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of the date first above written.
▇▇▇▇▇▇ INDUSTRIAL GROUP, INC.
By
Its:
----------------------------------
▇▇▇▇▇▇ METALCRAFT CO.
By
Its:
----------------------------------
▇▇▇▇▇▇ METALCRAFT CO. OF NORTH CAROLINA
By
Its:
----------------------------------
▇▇▇▇▇▇ METALCRAFT CO. OF SOUTH CAROLINA
By
Its:
----------------------------------
MID CENTRAL PLASTICS, INC.
By
Its:
----------------------------------
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B&W METAL FABRICATORS, INC.
By
Its:
----------------------------------
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Accepted and Agreed to at Chicago,
Illinois as of the day and year last
above written.
Each of the Lenders hereby agrees with each other Lender that if it
should receive or obtain any payment (whether by voluntary payment, by
realization upon collateral, by the exercise of rights of setoff or banker's
lien, by counterclaim or cross action, or by the enforcement of any rights under
this Agreement, the Notes, the Guaranties or otherwise) in respect of the
obligations of the Borrower under this Agreement, the Notes and the Guaranties
in a greater amount than such Lender would have received had such payment been
made to the Agent and been distributed among the Lenders as contemplated by
Section 3.5 hereof then in that event the Lender receiving such disproportionate
payment shall purchase for cash without recourse from the other Lenders an
interest in the obligations of the Borrower to such Lenders arising under this
Agreement the Notes, and the Guaranties in such amount as shall result in a
distribution of such payment as contemplated by Section 3.5 hereof. In the event
any payment made to a Lender and shared with the other Lenders pursuant to the
provisions hereof is ever recovered from such Lender, the Lenders receiving a
portion of such payment hereunder shall restore the same to the payor Lender,
but without interest.
Amount and Percentage of Commitments:
Revolving Credit Commitment: ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
$8,750,000.00 (41.666667%)
Term Loan Commitment: By
-----------------------------------
$13,735,591.65 (41.666667%) Its Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
LIBOR Funding Office:
Nassau Branch
c/o ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Amount and Percentage of Commitments:
Revolving Credit Commitment: FIRSTAR BANK, N.A.
$2,916,666.67 (13.888889%)
Term Loan Commitment: By
-----------------------------------
$4,578,530.54 (13.888889%) Its
--------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
---------------------------
Telephone:
---------------------------
Telecopy:
----------------------------
LIBOR Funding ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Amount and Percentage of Commitments:
Revolving Credit Commitment: NATIONAL CITY BANK
$2,333,333.33 (11.111111%)
Term Loan Commitment: By
-----------------------------------
$3,662,824.43 (11.111111%) Its
--------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
LIBOR Funding ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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Amount and Percentage of Commitments:
Revolving Credit Commitment: BRANCH BANKING & TRUST CO.
$3,500,000.00 (16.666667%)
Term Loan Commitment: By
-----------------------------------
$5,494,236.65 (16.666667%) Its
---------------------------------
------------------------------
------------------------------
------------------------------
Attention
--------------------
Telephone: (___) ___-____
Telecopy: (___) ___-____
LIBOR Funding Office
------------------------------
------------------------------
------------------------------
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Amount and Percentage of Commitments:
Revolving Credit Commitment: LASALLE BANK, NATIONAL ASSOCIATION
$3,500,000.00 (16.666667%)
Term Loan Commitment: By
-----------------------------------
$5,494,236.65 (16.666667%) Its
--------------------------------
------------------------------
------------------------------
------------------------------
Attention
--------------------
Telephone: (___) ___-____
Telecopy: (___) ___-____
LIBOR Funding Office
------------------------------
------------------------------
------------------------------
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