EXHIBIT 10.1
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of November 1, 2000
among
METALS USA, INC.
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS
and
BANK ONE, NA
as Agent
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▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE 1 DEFINITIONS........................................................1
1.1 CERTAIN DEFINED TERMS................................................1
1.2 REFERENCES..........................................................23
1.3 AMENDMENT AND RESTATEMENT OF AMENDED AND RESTATED CREDIT AGREEMENT..23
ARTICLE 2 THE LOAN FACILITIES...............................................23
2.1 LOANS...............................................................23
2.2 RATE OPTIONS FOR ALL ADVANCES.......................................25
2.3 OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS............................25
2.4 REDUCTION OF COMMITMENTS............................................26
2.5 METHOD OF BORROWING.................................................26
2.6 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES.........26
2.7 MINIMUM AMOUNT OF EACH ADVANCE......................................27
2.8 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND
CONTINUATION OF ADVANCES............................................27
2.9 DEFAULT RATE........................................................28
2.10 METHOD OF PAYMENT...................................................28
2.11 REVOLVING NOTES, TELEPHONIC NOTICES.................................28
2.12 PROMISE TO PAY; INTEREST AND COMMITMENT FEES; INTEREST PAYMENT DATES;
INTEREST AND FEE BASIS; TAXES; LOAN AND CONTROL ACCOUNTS............28
2.13 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND AGGREGATE
COMMITMENT REDUCTIONS...............................................33
2.14 LENDING INSTALLATIONS...............................................34
2.15 NON-RECEIPT OF FUNDS BY THE AGENT...................................34
2.16 TERMINATION DATE....................................................34
2.17 REPLACEMENT OF CERTAIN LENDERS......................................34
ARTICLE 3 THE LETTER OF CREDIT FACILITY.....................................35
3.1 OBLIGATION TO ISSUE.................................................35
3.2 TYPES AND AMOUNTS...................................................35
3.3 CONDITIONS..........................................................36
3.4 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.........................36
3.5 LETTER OF CREDIT PARTICIPATION......................................37
3.6 REIMBURSEMENT OBLIGATION............................................37
3.7 LETTER OF CREDIT FEES...............................................38
3.8 ISSUING BANK REPORTING REQUIREMENTS.................................38
3.9 INDEMNIFICATION; EXONERATION........................................38
3.10 CASH COLLATERAL.....................................................39
ARTICLE 4 CHANGE IN CIRCUMSTANCES...........................................40
4.1 YIELD PROTECTION....................................................40
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS.............................41
4.3 AVAILABILITY OF TYPES OF ADVANCES...................................41
4.4 FUNDING INDEMNIFICATION.............................................41
4.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY............................42
ARTICLE 5 CONDITIONS PRECEDENT..............................................42
5.1 ADVANCES AND LETTERS OF CREDIT......................................42
5.2 EACH ADVANCE AND LETTER OF CREDIT...................................43
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ARTICLE 6 REPRESENTATIONS AND WARRANTIES....................................44
6.1 ORGANIZATION; CORPORATE POWERS......................................44
6.2 AUTHORITY...........................................................44
6.3 NO CONFLICT; GOVERNMENTAL CONSENTS..................................44
6.4 FINANCIAL STATEMENTS................................................45
6.5 NO MATERIAL ADVERSE CHANGE..........................................45
6.6 TAXES...............................................................45
6.7 LITIGATION; LOSS CONTINGENCIES AND VIOLATIONS.......................46
6.8 SUBSIDIARIES........................................................46
6.9 ERISA...............................................................46
6.10 ACCURACY OF INFORMATION.............................................47
6.11 SECURITIES ACTIVITIES...............................................48
6.12 MATERIAL AGREEMENTS.................................................48
6.13 COMPLIANCE WITH LAWS................................................48
6.14 ASSETS AND PROPERTIES...............................................48
6.15 STATUTORY INDEBTEDNESS RESTRICTIONS.................................48
6.16 INSURANCE...........................................................48
6.17 LABOR MATTERS.......................................................48
6.18 ENVIRONMENTAL MATTERS...............................................49
6.19 BENEFITS............................................................49
6.20 SENIOR DEBT STATUS..................................................49
ARTICLE 7 COVENANTS.........................................................49
7.1 REPORTING...........................................................50
7.2 AFFIRMATIVE COVENANTS...............................................54
7.3 NEGATIVE COVENANTS..................................................57
7.4 FINANCIAL COVENANTS.................................................68
ARTICLE 8 DEFAULTS..........................................................70
8.1 DEFAULTS............................................................70
ARTICLE 9 ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES73
9.1 TERMINATION OF COMMITMENTS; ACCELERATION............................73
9.2 DEFAULTING LENDER...................................................73
9.3 AMENDMENTS..........................................................74
9.4 PRESERVATION OF RIGHTS..............................................75
ARTICLE 10 GENERAL PROVISIONS...............................................76
10.1 SURVIVAL OF REPRESENTATIONS.........................................76
10.2 GOVERNMENTAL REGULATION.............................................76
10.3 PERFORMANCE OF OBLIGATIONS..........................................76
10.4 HEADINGS............................................................77
10.5 ENTIRE AGREEMENT....................................................77
10.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT.....................77
10.7 EXPENSES; INDEMNIFICATION...........................................77
10.8 NUMBERS OF DOCUMENTS................................................79
10.9 ACCOUNTING..........................................................79
10.10 SEVERABILITY OF PROVISIONS..........................................79
10.11 NONLIABILITY OF LENDERS.............................................79
10.12 GOVERNING LAW.......................................................79
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.............79
10.14 NO STRICT CONSTRUCTION..............................................81
10.15 SUBORDINATION OF INTERCOMPANY INDEBTEDNESS..........................81
10.16 USURY NOT INTENDED..................................................82
10.17 BUSINESS LOANS......................................................83
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ARTICLE 11 THE AGENT........................................................83
11.1 APPOINTMENT; NATURE OF RELATIONSHIP.................................83
11.2 POWERS..............................................................83
11.3 GENERAL IMMUNITY....................................................84
11.4 NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, COLLATERAL, RECITALS,
ETC.................................................................84
11.5 ACTION ON INSTRUCTIONS OF LENDERS...................................84
11.6 EMPLOYMENT OF AGENTS AND COUNSEL....................................84
11.7 RELIANCE ON DOCUMENTS; COUNSEL......................................85
11.8 THE AGENT'S REIMBURSEMENT AND INDEMNIFICATION.......................85
11.9 RIGHTS AS A LENDER..................................................85
11.10 LENDER CREDIT DECISION..............................................85
11.11 SUCCESSOR AGENT.....................................................85
11.12 COLLATERAL DOCUMENTS................................................86
ARTICLE 12 SETOFF; RATABLE PAYMENTS.........................................87
12.1 SETOFF..............................................................87
12.2 RATABLE PAYMENTS....................................................87
12.3 APPLICATION OF PAYMENTS.............................................87
12.4 RELATIONS AMONG LENDERS.............................................88
ARTICLE 13 BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................89
13.1 SUCCESSORS AND ASSIGNS..............................................89
13.2 PARTICIPATIONS......................................................89
13.3 ASSIGNMENTS.........................................................90
13.4 CONFIDENTIALITY.....................................................91
13.5 DISSEMINATION OF INFORMATION........................................91
ARTICLE 14 NOTICES..........................................................92
14.1 GIVING NOTICE.......................................................92
14.2 CHANGE OF ADDRESS...................................................92
ARTICLE 15 COUNTERPARTS.....................................................92
ARTICLE 16 LIMITED WAIVER OF DEFAULTS.......................................92
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EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Form of Assignment Agreement
(Definitions, Sections 2.17 and 13.3)
EXHIBIT B -- Commitments
(Definitions)
EXHIBIT C -- Form of Revolving Note
(Definitions)
EXHIBIT D -- Form of Swing Line Note
(Definitions)
EXHIBIT E -- Form of Borrowing Notice (Section 2.6)
EXHIBIT F -- Form of Request for Letter of Credit (Section 3.3)
EXHIBIT G -- Form of Borrower's Counsel's Opinion
(Section 5.1)
EXHIBIT H -- Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT I -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT J -- Form of Guaranty Supplement
(Section 7.3(G)(ii))
EXHIBIT K -- Commitment and Acceptance
(Section 2.4(b))
EXHIBIT L -- Form of Borrowing Base Certificate
(Section 7.1(A)(v))
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SCHEDULES
Schedule 1.1.3 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.4 -- Permitted Existing Investments (Definitions)
Schedule 1.1.5 -- Permitted Existing Liens (Definitions)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 7.3 -- Subordination Terms (Section 7.3(A))
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement dated as of November 1,
2000 is entered into among Metals USA, Inc., a Delaware corporation, the
institutions from time to time parties hereto as Lenders, whether by execution
of this Agreement or an Assignment Agreement pursuant to SECTION 13.3, and Bank
One, NA, having an office in Chicago, Illinois, in its capacity as contractual
representative for itself and the other Lenders to amend and restate the
"Amended and Restated Credit Agreement" (as defined below) which is hereby
amended and restated in its entirety. The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. In addition to the terms defined above, the following
terms used in this Agreement shall have the following meanings, applicable both
to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ACCOUNTS" all accounts, contract rights, chattel paper, instruments and
documents, whether now owned or hereafter created or acquired by Borrower or any
of its Subsidiaries or, to the extent of such interest, in which Borrower or any
of its Subsidiaries now has or hereafter acquires any interest.
"ACCOUNTS RECEIVABLE" shall mean trade accounts receivable of Borrower and
its Subsidiaries as determined in accordance with Agreement Accounting
Principles.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the Original Closing Date, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"ADVANCE" means a borrowing hereunder consisting of the aggregate amount
of the several Revolving Loans made by the Lenders to the Borrower of the same
Type and, in the case of Eurodollar Rate Advances, for the same Interest Period.
"AFFECTED LENDER" is defined in SECTION 2.17 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934) of greater than ten percent (10%) or
more of any class of voting securities (or other voting interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of Capital Stock, by contract or otherwise.
"AGENT" means Bank One in its capacity as contractual representative for
itself and the Lenders pursuant to ARTICLE XI hereof and any successor Agent
appointed pursuant to Article XI hereof.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of all the
Lenders, as amended from time to time pursuant to the terms hereof. The
Aggregate Commitment shall be (i) Three Hundred Million and 00/100 Dollars
($300,000,000.00) from the Effective Date to June 30, 2001; (ii) $275,000,000
from June 30, 2001 to December 31, 2001; and (iii) $250,000,000 thereafter to
the Termination Date.
"AGREEMENT" means this Second Amended and Restated Credit Agreement, as it
may be amended, restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles in effect from time to time, applied in a manner consistent with that
used in preparing the financial statements referred to in SECTION 6.4 hereof,
PROVIDED, HOWEVER, that with respect to the calculation of financial ratios and
other financial tests required by this Agreement, "Agreement Accounting
Principles" means generally accepted accounting principles as in effect as of
the Effective Date, applied in a manner consistent with that used in preparing
the financial statements referred to in SECTION 6.4 hereof; PROVIDED, FURTHER,
HOWEVER, all PRO FORMA financial statements reflecting Acquisitions shall be
prepared in accordance with the requirements established by the Commission for
acquisition accounting for reporting acquisitions by public companies (whether
or not such Acquisitions are required to be publicly reported).
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (i) the Corporate Base Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b)
one-half of one percent (0.5%) per annum.
"AMENDED AND RESTATED CREDIT AGREEMENT" means the Amended and Restated
Credit Agreement dated February 11, 1998 among the Borrower, the financial
institutions parties thereto and the Agent, as amended from time to time.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under SECTION 2.12(C)(I) hereof, determined in accordance with
the provisions of Section 2.12(D)(II) hereof.
"APPLICABLE EURODOLLAR MARGIN" means, as at any date of determination, the
rate per annum then applicable to Eurodollar Rate Loans, determined in
accordance with the provisions of SECTION 2.12(D)(II) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of determination,
the rate per annum then applicable to Floating Rate Loans, determined in
accordance with the provisions of SECTION 2.12(D)(II) hereof.
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"APPLICABLE L/C FEE PERCENTAGE" means, with respect to any Letter of
Credit and as at any date of determination, a rate per annum equal to the
Applicable Eurodollar Margin in effect on such date.
"ARRANGER" means Banc One Capital Markets, Inc. (as successor to First
Chicago Capital Markets, Inc.), in its capacity as the arranger for the loan
transaction evidenced by this Agreement.
"ASSIGNMENT AGREEMENT" shall mean an assignment and acceptance agreement
entered into in connection with an assignment pursuant to SECTION 13.3 hereof in
substantially the form of Exhibit A.
"AUTHORIZED OFFICER" means any of the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer of the Borrower,
acting singly.
"BANK ONE" means Bank One, NA, a national banking association with its
office in Houston, Texas, in its individual capacity, and its successors.
"BASE EBITDA" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of the amounts for such period, without
duplication, of:
(i) Net Income, PLUS
(ii) Interest Expense, PLUS
(iii) charges against income for foreign, federal, state and local taxes,
to the extent deducted in computing Net Income, PLUS
(iv) depreciation expense, to the extent deducted in computing Net
Income, PLUS
(v) amortization expense, including, without limitation, amortization of
goodwill, other intangible assets and Transaction Costs, to the extent deducted
in computing Net Income, PLUS
(vi) other non-cash charges classified as long-term deferrals in
accordance with Agreement Accounting Principles, to the extent deducted in
computing Net Income, MINUS
(vii) Net Extraordinary Gains, PLUS
(viii) non-cash extraordinary losses (and any non-cash nonrecurring
unusual losses arising in or outside of the ordinary course of business not
included in extraordinary losses determined in accordance with Agreement
Accounting Principles) but only to the extent such amounts were not utilized to
offset gains in calculating Net Extraordinary Gains.
Base EBITDA shall be calculated for any period by including the actual
amount for the applicable period ending on such day.
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"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35) of
ERISA (other than a Multiemployer Plan) in respect of which the Borrower or any
other member of the Controlled Group is, or within the immediately preceding six
(6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means Metals USA, Inc., a Delaware corporation, together
with its successors and assigns, including a debtor-in-possession on behalf
of the Borrower.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan is
made hereunder.
"BORROWING BASE" means an amount determined from time to time as follows:
(i) 75% of the aggregate book value of all Accounts Receivable shown on
the most recent Borrowing Base Certificate delivered pursuant to SECTION
7.1(A)(V) hereof, minus
(ii) the aggregate outstanding Capital (as defined in the Securitization
Facility), together with any similar amount incurred in connection with the
Indebtedness, if any, permitted in SECTION 7.3(A)(XIV), plus
(iii) 50% of the aggregate book value of all Inventory shown on the most
recent Borrowing Base Certificate delivered pursuant to SECTION 7.1(a)(v)
hereof, minus
(iv) 6 months rent for each location where Borrower has not obtained a
landlord lien waiver as required pursuant to SECTION 7.2(M).
In the absence of the applicable Borrowing Base Certificate, the Agent
shall determine the Borrowing Base from time to time in its reasonable
discretion, taking into account all information reasonably available to it, and
the Borrowing Base from time to time so determined shall be the Borrowing Base
for all purposes of this Agreement until the applicable Borrowing Base
Certificate is furnished to and accepted by the Agent.
"BORROWING BASE CERTIFICATE" means a certificate, duly executed by the
Authorized Officer, appropriately completed and in substantially the form of
Exhibit L.
"BORROWING NOTICE" is defined in SECTION 2.6 hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurodollar Rate, a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and on which dealings in Dollars are carried on in the London interbank market
and (ii) for all other purposes a day (other than a Saturday or Sunday) on which
banks are open for business in Chicago, Illinois.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities, including
Capitalized Leases and Permitted Purchase Money Indebtedness) (other than in
connection with Permitted Acquisitions) by the Borrower and its Subsidiaries
during that period that, in conformity with Agreement Accounting Principles, are
required to be included in or reflected by the property, plant, equipment or
similar
4
fixed asset accounts reflected in the consolidated balance sheet of the Borrower
and its Subsidiaries.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies (fully protected against
currency fluctuations for any such deposits with a term of more than ten (10)
days); (iii) shares of money market, mutual or similar funds having assets in
excess of $100,000,000 and the investments of which are limited to investment
grade securities (i.e., securities rated at least Baa by ▇▇▇▇▇'▇ Investors
Service, Inc. or at least BBB by Standard & Poor's Ratings Group); (iv)
commercial paper of United States and foreign banks and bank holding companies
and their subsidiaries and United States and foreign finance, commercial
industrial or utility companies which, at the time of acquisition, are rated A-1
(or better) by Standard & Poor's Ratings Group or P-1 (or better) by ▇▇▇▇▇'▇
Investors Services, Inc.; (v) corporate bonds, mortgage-backed securities and
municipal bonds in each case of a domestic issuer rated at the date of
acquisition not less than Aaa by ▇▇▇▇▇'▇ Investor Services, Inc. or AAA by
Standard & Poor's Ratings Group with maturities of no more than two (2) years
from the date of acquisition; (vi) repurchase agreements secured by debt
securities of the type described in part (i) above, the market value of which,
including accrued interest, is not less than 100% of the amount of the
repurchase agreement, with maturities of no more than two years from the date of
acquisition, issued by or acquired from or through any Lender or any bank or
trust company organized under the laws of the United States or any state thereof
and having capital and surplus aggregating at least $100,000,000.00; and (vii)
money market funds with respect to which not less than 90% of such funds are
invested in the type of investments specified in CLAUSES (I) through (V) above;
PROVIDED, unless the context otherwise requires, that the maturities of such
Cash Equivalents shall not exceed 365 days.
"CHANGE" is defined in SECTION 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
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(i) any "person" or "group" (as such terms are used in SECTIONS 13(D) and
14(D) of the Exchange Act) is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of 30% or more of the combined
voting power of the Borrower's Capital Stock ordinarily having the right to vote
at an election of directors;
(ii) during any period of 24 consecutive calendar months, individuals:
(a) who were directors of the Borrower on the first day of such
period, or
(b) whose election or nomination for election to the board of
directors of the Borrower was recommended or approved by at least a
majority of the directors then still in office who were directors of the
Borrower on the first day of such period, or whose election or nomination
for election was so approved, shall cease to constitute a majority of the
board of directors of the Borrower;
(iii) the Borrower consolidates with or merges into another corporation or
conveys, transfers or leases all or substantially all of its property to any
Person, or any corporation consolidates with or merges into the Borrower, in
either event pursuant to a transaction in which the outstanding Capital Stock of
the Borrower is reclassified or changed into or exchanged for cash, securities
or other property;
(iv) other than as a result of a transaction permitted under the terms of
this Agreement, the Borrower shall cease to own, of record and beneficially,
with sole voting and dispositive power, (a) 80% of the outstanding shares of
Capital Stock of each of the Guarantors, (b) 100% of the outstanding shares of
Capital Stock of the Metals Receivables Corporation, or (c) shall cease to have
the power, directly or indirectly, to elect a majority of the members of the
board of directors of each of the Guarantors; or
(v) a "Change of Control" (as defined in the Indenture) shall have
occurred.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, or any successor statute.
"COLLATERAL" means any and all "Collateral" as defined in any applicable
Security Document, and Pledged Collateral (Amended and Restated Pledge
Agreement).
"COMMISSION" means the Securities and Exchange Commission and any Person
succeeding to the functions thereof.
"COMMITMENT" means, for each Lender, the obligation of such Lender to make
Revolving Loans and to purchase participations in Letters of Credit not
exceeding the amount set forth on Exhibit B to this Agreement opposite its name
thereon under the heading "Commitment" or on Schedule 1 of the Assignment
Agreement by which it became a Lender, as such amount may be modified from time
to time pursuant to the terms of this Agreement or to give effect to any
applicable Assignment Agreement.
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"CONSOLIDATED NET WORTH" means, at a particular date, all amounts which
would be included under shareholders' equity for the Borrower and its
consolidated Subsidiaries determined in accordance with Agreement Accounting
Principles.
"CONSOLIDATED TANGIBLE ASSETS" means the total assets of the Borrower and
its Subsidiaries on a consolidated basis, but excluding therefrom all items that
are treated as intangibles under Agreement Accounting Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any Contractual
Obligation, contingent or otherwise, of that Person with respect to any
Indebtedness of another or other obligation or liability of another, including,
without limitation, any such Indebtedness, obligation or liability of another
directly or indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business), co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including Contractual Obligations (contingent or
otherwise) arising through any agreement to purchase, repurchase, or otherwise
acquire such Indebtedness, obligation or liability or any security therefor, or
to provide funds for the payment or discharge thereof (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or to
maintain solvency, assets, level of income, or other financial condition, or to
make payment other than for value received.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision of
any equity or debt securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument, in each case in writing, to which that
Person is a party or by which it or any of its properties is bound, or to which
it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation which
is a member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrower; (ii) a partnership or other trade
or business (whether or not incorporated) which is under common control (within
the meaning of Section 414(c) of the Code) with the Borrower; and (iii) a member
of the same affiliated service group (within the meaning of Section 414(m) of
the Code) as the Borrower, any corporation described in CLAUSE (I) above or any
partnership or trade or business described in CLAUSE (II) above.
"CONTROLLED SUBSIDIARY" of any Person means a Subsidiary of such Person
(i) 90% or more of the total Equity Interests or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more wholly-owned Subsidiaries of such Person and (ii)
of which such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies, whether through the ownership
of voting securities, by agreement or otherwise.
7
"CONVERSION/CONTINUATION NOTICE" is defined in SECTION 2.8(D) hereof.
"CORPORATE BASE RATE" means the corporate base rate of interest announced
by Bank One from time to time, changing when and as said corporate base rate
changes.
"CURE LOAN" is defined in SECTION 9.2(III) hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or (if
foreclosure, distraint, sale or other similar proceedings shall not have
been commenced) which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with respect
to which adequate reserves or other appropriate provisions are being
maintained in accordance with Agreement Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other similar Liens
imposed by law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with respect
to which adequate reserves or other appropriate provisions are being
maintained in accordance with Agreement Accounting Principles;
(iii) Liens incurred or deposits made, in each case, in the ordinary
course of business in connection with worker's compensation, unemployment
insurance or other types of social security benefits or to secure the
performance of bids, tenders, sales, contracts (other than for the
repayment of borrowed money), surety, appeal and performance bonds;
PROVIDED that (a) all such Liens do not in the aggregate materially
detract from the value of the Borrower's or such Subsidiary's assets or
property taken as a whole or materially impair the use thereof in the
operation of the businesses taken as a whole, and (b) with respect to
Liens securing bonds to stay judgments or in connection with appeals do
not secure at any time an aggregate amount which if paid at such time
would result in the occurrence or existence of a Default;
(iv) Liens arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use
of real property which do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments, writs
or warrants of attachment, or similar process against the Borrower or any
of its Subsidiaries which do not constitute a Default under SECTION 8.1(H)
hereof; and
(vi) any interest or title of the lessor in the property subject to
any operating lease entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business.
"DEFAULT" means an event described in ARTICLE VIII hereof.
8
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States.
"DOMESTIC SUBSIDIARIES" means any Subsidiary of any Person organized under
the laws of any state of the United States.
"EBITDA" means, for any period, on a consolidated basis for the Borrower
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of:
(i) Net Income,
PLUS (ii) Interest Expense,
PLUS (iii) Charges against income for foreign, federal, state and local
taxes, to the extent deducted in computing Net Income,
PLUS (iv) Depreciation expense, to the extent deducted in computing Net
Income,
PLUS (v) Amortization expense, including, without limitation,
amortization of goodwill and other intangible assets to the extent
deducted in computing Net Income,
PLUS (vi) Other non-cash charges classified as long-term deferrals in
accordance with Agreement Accounting Principles, to the extent
deducted in computing Net Income,
MINUS (vii) Net Extraordinary Gains,
PLUS (viii) Non-cash extraordinary losses (and any non-cash nonrecurring
unusual losses arising in or outside of the ordinary course of
business not included in extraordinary losses determined in
accordance with Agreement Accounting Principles) but only to the
extent such amounts were not utilized to offset gains in calculating
Net Extraordinary Gains,
PLUS (ix) Any PRO FORMA adjustments which are consistent with the
Commission's regulations and practices as of the Original Closing
Date (whether or not applicable) to account for adjustments to
historical EBITDA for an acquired entity and which are realizable as
a result of negotiated and executed contractual arrangements.
9
As used herein "NET EXTRAORDINARY GAINS" shall mean the sum of, but only
if positive, extraordinary gains (and any nonrecurring unusual gains arising in
or outside of the ordinary course of business not included in extraordinary
gains determined in accordance with Agreement Accounting Principles which have
been included in the determination of Net Income) minus extraordinary losses
(and any nonrecurring unusual losses arising in or outside of the ordinary
course of business not included in extraordinary losses determined in accordance
with Agreement Accounting Principles). EBITDA shall be calculated for any period
by including the actual amount for the applicable period ending on such day,
including the EBITDA attributable to Permitted Acquisitions occurring during
such period on a PRO FORMA basis for the period from the first day of the
applicable period through the date of the closing of each Permitted Acquisition,
utilizing (a) where available or required pursuant to the terms of this
Agreement, historical audited and/or reviewed unaudited financial statements
obtained from the seller, broken down by fiscal quarter in the Borrower's
reasonable judgment or (b) unaudited financial statements (where no audited or
reviewed financial statements are required pursuant to the terms of this
Agreement) reviewed internally by the Borrower, broken down by fiscal quarter in
the Borrower's reasonable judgment.
"EFFECTIVE DATE" shall mean November 1, 2000.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local laws or
regulations relating to or addressing pollution or protection of the
environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 ET SEQ., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 ET seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 ET SEQ., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental Authority
for (a) any liability under Environmental, Health or Safety Requirements of Law,
or (b) damages arising from, or costs incurred by such Governmental Authority in
response to, a Release or threatened Release of a Contaminant into the
environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement of
law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
10
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Loan for
the relevant Interest Period, the rate determined by the Agent to be the
arithmetic average of the respective rates at which deposits in Dollars are
offered by Bank One to first-class banks in the London interbank market at
approximately 11 a.m. (London time) two Business Days prior to the first day of
such Interest Period, in the approximate amounts of the portions of the relevant
Eurodollar Rate Loan of Bank One, and having a maturity approximately equal to
such Interest Period, as adjusted for Reserves.
"EURODOLLAR RATE" means, with respect to a Eurodollar Rate Loan for the
relevant Interest Period, the Eurodollar Base Rate applicable to such Interest
Period plus the then Applicable Eurodollar Margin. The Eurodollar Rate shall be
rounded to the next higher multiple of 1/100 of 1% if the rate is not such a
multiple.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest at the
Eurodollar Rate.
"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurodollar Rate.
"FAIR VALUE" means (i) with respect to the Capital Stock of the Borrower,
the closing price for such Capital Stock on the trading date immediately
preceding the date of the applicable acquisition agreement; PROVIDED, such
amount may be discounted to the extent such discount is permitted by Agreement
Accounting Principles and (ii) with respect to other assets, the value of the
relevant asset as of the date of acquisition or sale determined in an
arm's-length transaction conducted in good faith between an informed and willing
buyer and an informed and willing seller under no compulsion to buy.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"FIXED CHARGE COVERAGE RATIO" is defined in SECTION 7.4(A) hereof.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal to
the Alternate Base Rate for such day plus the then Applicable Floating Rate
Margin, changing and as the Alternate Base Rate or Applicable Floating Rate
Margin changes.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
11
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as defined
in Section 3(3) of ERISA which (i) is maintained or contributed to for the
benefit of employees of the Borrower, any of its Subsidiaries or any member of
its Controlled Group, (ii) is not covered by ERISA pursuant to 1 of ERISA, and
(iii) could reasonably subject Borrower or any of its Domestic Subsidiaries to
liability.
"FOREIGN PENSION PLAN" means any Foreign Employee Benefit Plan which under
applicable local law is required to be funded through a trust or other funding
vehicle.
"GOVERNMENTAL ACTS" is defined in SECTION 3.9(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GROSS NEGLIGENCE" means recklessness, the absence of the slightest care
or the complete disregard of consequences. Gross Negligence does not mean the
absence of ordinary care or diligence, or an inadvertent act or inadvertent
failure to act. If the term "gross negligence" is used with respect to the Agent
or any Lender or any indemnitee in any of the other Loan Documents, it shall
have the meaning set forth herein.
"GUARANTORS" means all of the Borrower's Domestic Subsidiaries as of the
Effective Date and any other New Subsidiaries which are domestic subsidiaries
and have satisfied the provisions of SECTION 7.3(G)(II) hereof, and their
respective successors and assigns. Notwithstanding anything herein to the
contrary, the Metals Receivables Corporation, if formed, shall not be required
to be or become a Guarantor and shall not be included in the definition of
Guarantor.
"GUARANTY" means that certain Amended and Restated Guaranty dated as of
the Effective Date, executed by the Guarantors in favor of the Agent, for the
ratable benefit of the Lenders, as it may be amended, modified, supplemented
and/or restated (including to add new Guarantors), and as in effect from time to
time.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"HOLDERS OF SECURED OBLIGATIONS" means the holders of the Secured
Obligations from time to time and shall refer to (i) each Lender in respect of
its Loans, (ii) the Issuing Bank in respect of Reimbursement Obligations, (iii)
the Agent, the Lenders, the Swing Line Bank and the Issuing Bank in respect of
all other present and future obligations and liabilities of the Borrower
12
or any of its Domestic Subsidiaries of every type and description arising under
or in connection with this Agreement or any other Loan Document, (iv) each
Indemnitee in respect of the obligations and liabilities of the Borrower to such
Person hereunder, (v) each Lender (or affiliate thereof), in respect of all
Hedging Obligations of the Borrower or any of its Subsidiaries to such Lender
(or such affiliate) as exchange party or counterparty under any Interest Rate
Agreement, and (vi) their respective successors, transferees and assigns.
"INDEBTEDNESS" of any Person means, without duplication, such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from property or assets now or hereafter owned
or acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances or other instruments, (v) Capitalized Lease Obligations, (vi)
reimbursement obligations with respect to letters of credit (other than
commercial letters of credit) issued for the account of such Person, (vii)
Hedging Obligations, (viii) Off Balance Sheet Liabilities and (ix) Contingent
Obligations in respect of obligations of another Person of the type described in
the foregoing CLAUSES (I) through (VIII). The amount of Indebtedness of any
Person at any date shall be without duplication (i) the outstanding balance at
such date of all unconditional obligations as described above and the maximum
liability of any such Contingent Obligations at such date and (ii) in the case
of Indebtedness of others secured by a Lien to which the property or assets
owned or held by such Person is subject, the lesser of the fair market value at
such date of any asset subject to a Lien securing the Indebtedness of others and
the amount of the Indebtedness secured. Indebtedness shall include the
unrecovered investment of purchasers or transferees of Receivables Interests
from Originators or Metals Receivables Corporation pursuant to the Receivables
Purchase Documents or any other obligation of the Borrower, Metals Receivables
Corporation or the Originators to purchasers/transferees of Receivables
Interests or the agent for such purchasers/transferees pursuant to and in
connection with the Receivables Purchase Documents, and, without limitation of
the other provisions herein, such Indebtedness shall be deemed to be funded
Indebtedness for purposes of SECTION 7.1(F) and part of Total Debt for purposes
of SECTION 2.12 and SECTION 7.4.
"INDEMNIFIED MATTERS" is defined in SECTION 10.7(B) hereof.
"INDEMNITEES" is defined in SECTION 10.7(B) hereof.
"INDENTURE" means that certain Indenture dated as of February 11, 1998
between the Borrower and U.S. Trust Company of California, N.A., as Trustee, as
amended, supplemented or modified in accordance with SECTION 7.3(R) hereof.
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Borrower and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, the interest component
of synthetic leases or tax retention operating leases, net payments and credits
(if any) pursuant to Hedging Obligations relating to interest rate protection,
commitment and letter of credit fees and discount and other fees and charges
incurred under the Receivables Purchase Documents), but excluding interest
expense not payable in cash
13
(including amortization of discount), all as determined in conformity with
Agreement Accounting Principles.
"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a period
of one (1), two (2), three (3), or six (6) months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Interest Period shall
end on (but exclude) the day which corresponds numerically to such date one,
two, three or six months thereafter; provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"INVENTORY" means inventory of Borrower and its Subsidiaries as determined
in accordance with Agreement Accounting Principles.
"INVESTMENT" means, with respect to any Person, (i) any purchase or other
acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business conducted by another
Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to the
functions thereof.
"ISSUING BANKS" means Bank One and any other Lender which, at the
Borrower's request, agrees, in each such Lender's sole discretion, to become an
Issuing Bank for the purpose of issuing Letters of Credit, and their respective
successors and assigns, in each case in such Lender's separate capacity as an
issuer of Letters of Credit pursuant to SECTION 3.1. The designation of any
Lender as an Issuing Bank after the date hereof shall be subject to the prior
written consent of the Agent.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter of
Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in SECTION 3.5
hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the sum
of (i) the aggregate of the amount then available for drawing under each of the
Letters of Credit, (ii) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the applicable Issuing Bank, (iii) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (iv) the aggregate face amount of all
Letters of Credit requested by the Borrower but not yet issued (unless the
request for an unissued Letter of Credit has been denied).
14
"LENDERS" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent, any
office, branch, subsidiary or affiliate of such Lender or the Agent.
"LETTER OF CREDIT" means the letters of credit issued by the Issuing Banks
pursuant to Section 3.1 hereof after the Original Closing Date.
"LEVERAGE RATIO" is defined in SECTION 7.4(B) hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, encumbrance or security agreement or preferential
arrangements of any kind or nature whatsoever (including, without limitation,
the interest of a vendor or lessor under any conditional sale, Capitalized Lease
or other title retention agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of any
Advance made pursuant to SECTION 2.1(A) hereof (individually a "REVOLVING Loan"
and collectively, the "Revolving Loans"), and in the case of the Swing Line
Bank, any Swing Line Loan made pursuant to SECTION 2.1(B) hereof, and
collectively all such Revolving Loans and Swing Line Loans, whether made or
continued as or converted to Floating Rate Loans or Eurodollar Rate Loans.
"LOAN ACCOUNT" is defined in SECTION 2.12(F) hereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty, the Pledge
Agreements, the Security Agreements and all other documents, instruments and
agreements executed in connection therewith or contemplated thereby, as the same
may be amended, restated or otherwise modified and in effect from time to time.
"MARGIN STOCK" shall have the meaning ascribed to such term in Regulation
U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower, or the Borrower and its Subsidiaries, taken as a
whole, (ii) the ability of the Borrower or any of its Subsidiaries to perform
their respective obligations under the Loan Documents in any material respect or
(iii) the ability of the Lenders or the Agent to enforce in any material respect
their rights under the Loan Documents or with respect to the Collateral.
"MATERIAL SUBSIDIARY" means (i) any "Significant Subsidiary" as defined in
Regulation S-X issued pursuant to the Securities Act and the Exchange Act and
(ii) any other Subsidiary of the Borrower which at any time comprises ten
percent (10%) or more of the Borrower's Consolidated Tangible Assets.
"MAXIMUM RATE" means the maximum nonusurious interest rate under
applicable law. To the extent Texas law may apply to this Agreement, the maximum
lawful rate under this Agreement shall be the weekly indicated rate ceiling
under the Texas Finance Code, Chapter
15
303, as amended, unless any other lawful rate ceiling exceeds the rate ceiling
so determined, and then the higher rate ceiling shall apply.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any member of the Controlled
Group.
"NET INCOME" means, for any period, the net earnings (or loss) after taxes
of the Borrower and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with Agreement
Accounting Principles.
"NEW SUBSIDIARY" is defined in SECTION 7.3(G)(II).
"NON PRO RATA LOAN" is defined in SECTION 9.2 hereof.
"NOTICE OF ASSIGNMENT" is defined in SECTION 13.3(B) hereof.
"NOTES" means the Revolving Notes and the Swing Line Note.
-----
"OBLIGATIONS" means all Loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower to the Agent, any Lender, the Swing
Line Bank, the Arranger, any Affiliate of the Agent or any Lender, or any
Indemnitee, of any kind or nature, present or future, arising under this
Agreement, the Notes or any other Loan Document, whether or not evidenced by any
note, guaranty or other instrument, whether or not for the payment of money,
whether arising by reason of an extension of credit, loan, guaranty,
indemnification, or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each case whether or not allowed), and any
other sum chargeable to the Borrower under this Agreement or any other Loan
Document.
"OFF BALANCE SHEET LIABILITIES" of a Person means (i) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
including, without limitation, pursuant to the Receivables Purchase Documents,
(ii) any liability under any sale and leaseback transactions which do not create
a liability on the consolidated balance sheet of such Person, (iii) any
liability under any financing lease or so-called "synthetic" lease transaction
or tax retention operating lease, or (iv) any obligations arising with respect
to any other transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
"ORIGINAL CLOSING DATE" means July 15, 1997.
"ORIGINAL CREDIT AGREEMENT" means the Credit Agreement dated as of July
15, 1997 among the Borrower, the financial institutions parties thereto and the
Agent, as amended and restated as of February 11, 1998.
16
"ORIGINATORS" means the Borrower, Metals USA Flat Rolled Central, Inc.,
Metals USA Specialty Metals, Northcentral, Inc., Metals USA Plates and
Shapes, Northeast, L.P., Metals USA Plates and Shapes Southwest, Limited
Partnership, Metals USA Plates and Shapes Southeast, Inc., Metals USA Plates
and Shapes Southcentral, Inc. or Metals USA Carbon Flat Rolled, Inc.
"OTHER TAXES" is defined in Section 2.12(E)(II) hereof.
"PARTICIPANTS" is defined in SECTION 13.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each March, June, September
and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in SECTION 7.3(G)(III) hereof.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Borrower
and its Subsidiaries identified as such on SCHEDULE 1.1.3 to this Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrower and
its Subsidiaries identified as such on SCHEDULE 1.1.4 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower and
its Subsidiaries identified as such on SCHEDULE 1.1.5 to this Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in SECTION 7.3(a)(ix)
hereof.
"PERMITTED RECEIVABLES TRANSFER" means (i) the sale or other transfer by
any Originator of Receivables (and any related security and collections)
(collectively, "Receivables Interests") for fair market value and without
recourse (except for limited recourse customary for similar structured finance
transactions) to Borrower and (ii) a sale by Borrower to Metals Receivables
Corporation of Receivables Interests purchased by Borrower from an Originator or
transferred to Borrower by an Originator, in each case pursuant to the
Securitization Facility (as amended, modified and/or restated from time to time
in accordance with the terms of this Agreement, the "Receivables Purchase
Documents").
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness (other than the Senior Subordinated
Notes) permitted by this Agreement that (i) does not exceed the aggregate
principal amount (plus associated fees and expenses) of the Indebtedness being
replaced, renewed, refinanced or extended, (ii) does not rank at the time of
such replacement, renewal, refinancing or extension senior to the Indebtedness
being replaced, renewed, refinanced or extended, and (iii) does not contain
terms (including, without limitation, terms relating to security, amortization,
maturity, interest rate, premiums, fees, covenants, event of default and
remedies) materially less favorable to the Borrower or to the Lenders than those
applicable to the Indebtedness being replaced, renewed, refinanced or extended.
17
"PERMITTED SUBORDINATED INDEBTEDNESS" is defined in SECTION 7.3(A)(III)
hereof.
"PERSON" means any individual, corporation, firm, enterprise, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company or other entity of any kind, or any
government or political subdivision or any agency, department or instrumentality
thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA in
respect of which the Borrower or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENTS" means (i) the Amended and Restated Pledge Agreement
dated as of the Effective Date executed by the Borrower in favor of the Agent
(ii) any pledge agreement executed by any Subsidiary with respect to the Capital
Stock of any other Subsidiary executed pursuant to the terms of SECTION 7.2(K),
in each case, as amended, modified, supplemented and/or restated (including to
add additional pledged Capital Stock of additional Subsidiaries, and (iii) the
Pledge of Cash and Deposit Accounts dated the Effective Date executed by
Borrower in favor of the Agent.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (A) such Lender's Commitment at such time (as adjusted from
time to time in accordance with the provisions of this Agreement) by (B) the sum
of the Aggregate Commitments at such time; PROVIDED, HOWEVER, if the Commitments
are terminated pursuant to the terms of this Agreement, then "Pro Rata Share"
means the percentage obtained by dividing (x) the sum of such Lender's L/C
Obligations and Revolving Loans, and in the case of the Swing Line Bank, Swing
Line Loans by (y) the aggregate amount of all Revolving Loans, Swing Line Loans
and L/C Obligations.
"PURCHASERS" is defined in SECTION 13.3(A) hereof.
"RATE OPTION" means the Eurodollar Rate or the Floating Rate.
"RECEIVABLE(S)" means and includes all of the Borrower's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Borrower and its
Subsidiaries to payment for goods sold or leased or for services rendered
(except those evidenced by instruments or chattel paper), whether or not they
have been earned by performance, and all rights in any merchandise or goods
which any of the same may represent, and all right, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
"RECEIVABLES INTERESTS" is defined in the definition of Permitted
Receivables Transfer above.
"RECEIVABLES PURCHASE DOCUMENTS" is defined in the definition of Permitted
Receivables Transfer above.
"REGISTER" is defined in SECTION 13.3(C) hereof.
18
"REGULATION T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying Margin
Stock applicable to member banks of the Federal Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in SECTION 3.6 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including the movement of Contaminants through or in the
air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property but does not include any
amounts payable under Capitalized Leases of such Person.
"REPLACEMENT LENDER" is defined in SECTION 2.17 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days after
such event occurs, PROVIDED, HOWEVER, that a failure to meet the minimum funding
standards of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the aggregate,
are equal to or greater than fifty-one percent (51%); PROVIDED, HOWEVER, that,
if any of the Lenders shall have failed to fund its Pro Rata Share of any
Revolving Loan requested by the Borrower, or any Swing Line Loan as requested by
the Agent, which such Lenders are obligated to fund under the terms of this
Agreement and any such failure has not been cured, then for so long as such
failure continues, "REQUIRED LENDERS" means Lenders (excluding all Lenders whose
failure to fund their respective Pro Rata Shares of such Revolving Loans or
Swing Line Loans has not been so cured) whose Pro Rata Shares represent at least
fifty-one percent (51%) of the aggregate Pro Rata Shares of such Lenders;
PROVIDED FURTHER, HOWEVER, that, if the Commitments have been terminated
pursuant to the terms of this Agreement, "REQUIRED LENDERS" means Lenders
(without regard to such Lenders' performance of their respective obligations
hereunder) whose
19
aggregate ratable shares (stated as a percentage) of the aggregate outstanding
principal balance of all Loans and L/C Obligations are equal to or greater than
fifty-one percent (51%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws or
other organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act of 1933, the Securities Exchange Act of
1934, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Rate Loans is determined or category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution, direct
or indirect, on account of any Equity Interests of the Borrower now or hereafter
outstanding, except a dividend payable solely in the Borrower's Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock, (ii) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any Equity Interests of the
Borrower or any of its Subsidiaries now or hereafter outstanding, other than in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Borrower) of other Equity Interests of the
Borrower (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Permitted Subordinated Indebtedness, and (iv) any payment of a
claim for the rescission of the purchase or sale of, or for material damages
arising from the purchase or sale of, any Permitted Subordinated Indebtedness or
any Equity Interests of the Borrower or any of the Borrower's Subsidiaries, or
of a claim for reimbursement, indemnification or contribution arising out of or
related to any such claim for damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the amount
by which the lesser of (i) the Aggregate Commitment and (ii) the Borrowing Base
at such time exceeds the Revolving Credit Obligations at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum of
(i) the outstanding principal amount of the Loans (including the Swing Line
Loans) at such time, plus (ii) the L/C Obligations at such time.
"REVOLVING LOAN" is defined in the definition of "Loans" above.
20
"REVOLVING NOTE" means a promissory note, in substantially the form of
Exhibit C hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Commitment, including any amendment, restatement,
modification, renewal or replacement of such Revolving Note.
"RISK-BASED CAPITAL GUIDELINES" is defined in SECTION 4.2 hereof.
"SECURED OBLIGATIONS" means, collectively, (i) the Obligations and (ii)
all Hedging Obligations owing to any Lender or any affiliate of any Lender under
agreements with respect thereto entered into with any Lender or any affiliate of
any Lender.
"SECURITIZATION FACILITY" means that certain securitization transaction
among Metals Receivables Corporation, Falcon Asset Securitization Corporation,
certain financial institutions parties thereto and Bank One, NA, formerly known
as The First National Bank of Chicago, as agent, evidenced by that certain
Receivables Purchase Agreement dated January 21, 1999 and all other documents
executed in connection therewith.
"SECURITY AGREEMENTS" means (i) the Security Agreement dated as of the
Effective Date executed by Borrower in favor of Agent; (ii) the Security
Agreement dated as of the Effective Date executed by the Borrower's Subsidiaries
in favor of the Agent; and (iii) any Security Agreement executed by any
Subsidiary pursuant to the terms of SECTION 7.2(L), in each case, as amended,
modified, supplemented and/or restated.
"SECURITY DOCUMENTS" means, collectively, the Pledge Agreements, the
Security Agreements and any and all other agreements, deeds of trust, mortgages,
chattel mortgages, security agreements, pledges, guaranties, assignments of
production or proceeds of production, assignments of income, assignments of
contract rights, assignments of partnership interest, assignments of royalty
interest, assignments of performance, completion or surety bond, standby
agreements, subordination agreements, undertakings and other instruments and
financing statements now or hereafter executed and delivered as security for the
Secured Obligations, as any of them may from time to time be amended, modified,
restated or supplemented.
"SENIOR SUBORDINATED NOTES" means those certain 8-5/8% Senior Subordinated
Notes due February 15, 2008, issued by the Borrower in the aggregate principal
amount of up to $300,000,000 pursuant to the Indenture, as amended, supplemented
or modified in accordance with SECTION 7.3(R) hereof.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
21
"SWING LINE BANK" means Bank One or any other Lender as a successor Swing
Line Bank.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $25,000,000 at any one
time outstanding.
"SWING LINE LOAN" means (i) any Swing Line Loan made pursuant to the
Amended and Restated Credit Agreement and outstanding on the Effective Date and
(ii) a Loan made available to the Borrower by the Swing Line Bank pursuant to
SECTION 2.1(B) hereof.
"SWING LINE NOTE" means a promissory note, in substantially the form of
Exhibit D hereto, duly executed by the Borrower and payable to the order of the
Swing Line Bank in the amount of its Swing Line Commitment, including any
amendment, restatement, modification, renewal or replacement of such Swing Line
Note.
"SYNDICATION PERIOD" is defined in SECTION 2.2 hereof.
"TAXES" is defined in SECTION 2.12(E)(I) hereof.
"TERMINATION DATE" means the earlier of (i) February 11, 2003 and (ii) the
date of termination of the Aggregate Commitment pursuant to SECTION 2.4 hereof
or the Commitments pursuant to Section 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Borrower or any member of the Controlled Group; (iii)
the imposition of an obligation on the Borrower or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; (v) any event or condition which might constitute
grounds under Section 4042 of ERISA for the Termination of, or the appointment
of a trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of the Borrower or any member of the Controlled Group from a
Multiemployer Plan.
"TOTAL DEBT" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of Indebtedness of the Borrower and its
Subsidiaries, other than Hedging Obligations.
"TRANSFEREE" is defined in SECTION 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate Loan
or a Eurodollar Rate Loan.
22
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans, the
amount (if any) by which the present value of all vested nonforfeitable benefits
under all Single Employer Plans exceeds the fair market value of all such Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plans, and (ii) in the case of Multiemployer Plans, the
withdrawal liability that would be incurred by the Controlled Group if all
members of the Controlled Group completely withdrew from all Multiemployer
Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or the
giving of notice, or both, would constitute a Default.
Any accounting terms used in this Agreement which are not specifically
defined herein shall have the meanings customarily given them in accordance with
generally accepted accounting principles in existence as of the Effective Date
hereof.
1.2 REFERENCES. The existence throughout the Agreement of references to the
Borrower's Subsidiaries is for a matter of convenience only. Any references to
Subsidiaries of the Borrower set forth herein shall not in any way be construed
as consent by the Agent or any Lender to the establishment, maintenance or
acquisition of any Subsidiary, except as may otherwise be permitted hereunder.
1.3 AMENDMENT AND RESTATEMENT OF AMENDED AND RESTATED CREDIT AGREEMENT. The
Borrower, the Lenders, the Agent, the Swing Line Bank and the Issuing Banks
agree that, upon (i) the execution and delivery of this Agreement by each of the
parties hereto and (ii) satisfaction (or waiver by the Agent and all of the
Lenders) of the conditions precedent set forth in SECTION 5.1, the terms and
provisions of the Amended and Restated Credit Agreement shall be and hereby are
amended, superseded and restated in their entirety by the terms and provisions
of this Agreement. This Agreement is not intended to and shall not constitute a
novation of the Amended and Restated Credit Agreement or the indebtedness
created thereunder. All other Loans made under the Amended and Restated Credit
Agreement shall be repaid on the Effective Date. The commitments of each Lender
that is a party to the Amended and Restated Credit Agreement shall, on the
Effective Date, automatically be deemed amended to constitute such Lender's
Commitment hereunder.
ARTICLE 2
THE LOAN FACILITIES
2.1 LOANS.
(a) REVOLVING LOANS. Upon the satisfaction of the conditions precedent set
forth in SECTIONS 5.1 and 5.2, from and including the Effective Date and prior
to the Termination Date, each Lender severally and not jointly agrees, on the
terms and conditions set forth in this Agreement, to make Revolving Loans to the
Borrower from time to time, in Dollars, in an amount not to exceed such Lender's
Pro Rata Share of Revolving Credit Availability at such time; PROVIDED, HOWEVER,
at no time shall the Revolving Credit Obligations exceed the lesser of (i) the
Aggregate Commitment and (ii) the Borrowing Base. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Revolving Loans at any
time prior to
23
the Termination Date. The Revolving Loans made on the Effective Date shall
initially be Floating Rate Loans and thereafter may be continued as Floating
Rate Loans or converted into Eurodollar Rate Loans in the manner provided in
SECTION 2.8 and subject to the other conditions and limitations therein set
forth and set forth in this ARTICLE II. On the Termination Date, the Borrower
shall repay in full the outstanding principal balance of the Loans. Each Advance
under this SECTION 2.1(A) shall consist of Revolving Loans made by each Lender
ratably in proportion to such Lender's respective Pro Rata Share.
(b) SWING LINE LOANS.
(i) AMOUNT OF SWING LINE LOANS. Upon the satisfaction of the
conditions precedent set forth in SECTION 5.1 and 5.2, from and including
the Effective Date and prior to the Termination Date, the Swing Line Bank
agrees, on the terms and conditions set forth in this Agreement, to make
swing line loans to the Borrower from time to time, in Dollars, in an
amount not to exceed the Swing Line Commitment (each, individually, a
"SWING LINE LOAN" and collectively, the "SWING LINE LOANS"); provided,
HOWEVER, at no time shall the Revolving Credit Obligations ------- exceed
the lesser of (x) the Aggregate Commitment and (y) the Borrowing Base; and
provided, further, that at no time shall the sum of (A) the outstanding
amount of the Swing Line Loans, plus (B) the outstanding amount of
Revolving Loans made by the Swing Line Bank pursuant to SECTION 2.1(A)
(after giving effect to any concurrent repayment of ---------------
Loans), exceed the Swing Line Bank's Commitment at such time. Subject to
the terms of this Agreement, the Borrower may borrow, repay and reborrow
Swing Line Loans at any time prior to the Termination Date.
(ii) BORROWING NOTICE. The Borrower shall deliver to the Agent and
the Swing Line Bank a Borrowing Notice, signed by it, not later than 10:00
a.m. (Chicago time) on the Borrowing Date of each Swing Line Loan,
specifying (i) the applicable Borrowing Date (which shall be a Business
Day), and (ii) the aggregate amount of the requested Swing Line Loan. The
Swing Line Loans shall at all times be Floating Rate Loans, which shall be
an amount not less than $250,000 and increments of $100,000 in excess
thereof. The Agent shall promptly notify each Lender of such request.
(iii) MAKING OF SWING LINE LOANS. Promptly after receipt of the
Borrowing Notice under SECTION 2.1(B)(II) in respect of Swing Line Loans,
the Agent shall notify each Lender by telex or telecopy, or other similar
form of transmission, of the requested Swing Line Loan. Not later than
2:00 p.m. (Chicago time) on the applicable Borrowing Date, the Swing Line
Bank shall make available its Swing Line Loan, in funds immediately
available in Chicago to the Agent at its address specified pursuant to
ARTICLE XIV. The Agent will promptly make the funds so received from the
Swing Line Bank available to the Borrower at the Agent's aforesaid
address.
(iv) REPAYMENT OF SWING LINE LOANS. The Swing Line Loans shall be
evidenced by the Swing Line Note, and each Swing Line Loan shall be paid
in full by the Borrower on or before the fifth Business Day after the
Borrowing Date for such Swing Line Loan. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans or, in a
minimum amount and increments of $100,000,
24
any portion of the outstanding Swing Line Loans, upon notice to the Agent
and the Swing Line Bank. In addition, the Agent (i) may at any time in its
sole discretion with respect to any outstanding Swing Line Loan, or (ii)
shall on the fifth Business Day after the Borrowing Date of any Swing Line
Loan, require each Lender (including the Swing Line Bank) to make a
Revolving Loan in the amount of such Lender's Pro Rata Share of such Swing
Line Loan, for the purpose of repaying such Swing Line Loan. Not later
than 2:00 p.m. (Chicago time) on the date of any notice received pursuant
to this SECTION 2.1(B)(IV), each Lender shall make available its required
Revolving Loan or Revolving Loans, in funds immediately available in
Chicago to the Agent at its address specified pursuant to Article XIV.
Revolving Loans made pursuant to this SECTION 2.1(B)(IV) shall initially
be Floating Rate Loans and thereafter may be continued as Floating Rate
Loans or converted into Eurodollar Rate Loans in the manner provided in
SECTION 2.8 and subject to the other conditions and limitations therein
set forth and set forth in this ARTICLE II. Unless a Lender shall have
notified the Swing Line Bank, prior to its making any Swing Line Loan,
that any applicable condition precedent set forth in SECTIONS 5.1 and 5.2
had not then been satisfied, such Lender's obligation to make Revolving
Loans pursuant to this SECTION 2.1(B)(IV) to repay Swing Line Loans shall
be unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (A) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Agent, the Swing Line Bank or any other
Person, (B) the occurrence of continuance of a Default or Unmatured
Default, (C) any adverse change in the condition (financial or otherwise)
of the Borrower, or (D) any other circumstances, happening or event
whatsoever. In the event that any Lender fails to make payment to the
Agent of any amount due under this SECTION 2.1(B)(IV), the Agent shall be
entitled to receive, retain and apply against such obligation the
principal and interest otherwise payable to such Lender hereunder until
the Agent receives such payment from such Lender or such obligation is
otherwise fully satisfied. In addition to the foregoing, if for any reason
any Lender fails to make payment to the Agent of any amount due under this
SECTION 2.1(B)(IV), such Lender shall be deemed, at the option of the
Agent, to have unconditionally and irrevocably purchased from the Swing
Line Bank, without recourse or warranty, an undivided interest and
participation in the applicable Swing Line Loan in the amount of such
Revolving Loan, and such interest and participation may be recovered from
such Lender together with interest thereon at the Federal Funds Effective
Rate for each day during the period commencing on the date of demand and
ending on the date such amount is received. On the Termination Date, the
Borrower shall repay in full the outstanding principal balance of the
Swing Line Loans.
2.2 RATE OPTIONS FOR ALL ADVANCES. The Revolving Loans may be Floating
Rate Advances or Eurodollar Rate Advances, or a combination thereof, selected by
the Borrower in accordance with SECTION 2.8. The Borrower may select, in
accordance with SECTION 2.8, Rate Options and Interest Periods applicable to
portions of the Revolving Loans; provided that there shall be no more than seven
(7) Interest Periods in effect with respect to all of the Revolving Loans at any
time.
2.3 OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS.
25
(a) OPTIONAL PAYMENTS. The Borrower may from time to time repay or prepay,
without penalty or premium all or any part of outstanding Floating Rate
Advances; PROVIDED, that the Borrower may not so prepay Floating Rate Advances
unless it shall have provided at least one Business Day's written notice to the
Agent of such prepayment. Eurodollar Rate Advances may be voluntarily repaid or
prepaid prior to the last day of the applicable Interest Period, subject to the
indemnification provisions contained in SECTION 4.4, PROVIDED, that the Borrower
may not so prepay Eurodollar Rate Advances unless it shall have provided at
least two (2) Business Days' written notice to the Agent of such prepayment.
(b) MANDATORY PREPAYMENTS. If at any time and for any reason the Revolving
Credit Obligations are greater than the lesser of (i) the Aggregate Commitment
and (ii) the Borrowing Base, the Borrower shall immediately make a mandatory
prepayment of the Obligations in an amount equal to such excess. In addition, if
Revolving Credit Availability is at any time less than the amount of contingent
L/C Obligations outstanding at any time, the Borrower shall deposit cash
collateral with the Agent in an amount equal to the amount by which such L/C
Obligations exceed such Revolving Credit Availability. The Borrower shall also
make the mandatory prepayment, if any, required by SECTION 7.3(J). All of the
mandatory prepayments made under this SECTION 2.3(B) shall be applied first to
Floating Rate Loans and to any Eurodollar Rate Loans maturing on such date and
then to subsequently maturing Eurodollar Rate Loans in order of maturity.
2.4 REDUCTION OF COMMITMENTS.
(a) VOLUNTARY REDUCTION OF COMMITMENT. The Borrower may permanently reduce
the Aggregate Commitment in whole, or in part ratably among the Lenders, in an
aggregate minimum amount of $5,000,000 and integral multiples of $5,000,000 in
excess of that amount (unless the Aggregate Commitment is reduced in whole),
upon at least three (3) Business Days' written notice to the Agent, which notice
shall specify the amount of any such reduction; PROVIDED, HOWEVER, that the
amount of the Aggregate Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Obligations. All accrued
commitment fees shall be payable on the effective date of any partial or
complete termination of the obligations of the Lenders to make Revolving Loans
hereunder.
(b) MANDATORY REDUCTION OF COMMITMENT. The Aggregate Commitment shall be
reduced at the times and by the amounts set forth in the definition thereof and
as required by SECTION 7.3(J).
2.5 METHOD OF BORROWING. Not later than 2:00 p.m. (Chicago time) on each
Borrowing Date, each Lender shall make available its Revolving Loan, in funds
immediately available in Chicago to the Agent at its address specified pursuant
to Article XIV. The Agent will promptly make the funds so received from the
Lenders available to the Borrower at the Agent's aforesaid address.
2.6 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Rate Advance, the Interest Period applicable to each Advance from time to time.
The Borrower shall give the Agent irrevocable notice in substantially the form
of Exhibit E hereto (a "BORROWING NOTICE") not later
26
than 10:00 a.m. (Chicago time) (i) on the Borrowing Date of each Floating Rate
Advance and (ii) three Business Days before the Borrowing Date for each
Eurodollar Rate Advance, specifying: (A) the Borrowing Date (which shall be a
Business Day) of such Advance; (B) the aggregate amount of such Advance; (C) the
Type of Advance selected; and (D) in the case of each Eurodollar Rate Advance,
the Interest Period applicable thereto. Each Floating Rate Advance and all
Obligations other than Loans shall bear interest from and including the date of
the making of such Advance to (but not including) the date of repayment thereof
at the Floating Rate, changing when and as such Floating Rate changes. Changes
in the rate of interest on that portion of any Advance maintained as a Floating
Rate Loan will take effect simultaneously with each change in the Alternate Base
Rate. Each Eurodollar Rate Advance shall bear interest from and including the
first day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the interest rate determined as applicable
to such Eurodollar Rate Advance.
2.7 MINIMUM AMOUNT OF EACH ADVANCE. Each Advance (other than an Advance to
repay Swing Line Loans pursuant to SECTION 2.1(B)(IV) or a Reimbursement
Obligation pursuant to SECTION 3.6) shall be in the minimum amount of $5,000,000
(and in multiples of $1,000,000 if in excess thereof), PROVIDED, HOWEVER, that
any Floating Rate Advance may be in the amount of the unused Aggregate
Commitment.
2.8 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND
CONTINUATION OF ADVANCES.
(a) RIGHT TO CONVERT. The Borrower may elect from time to time, subject to
the provisions of SECTION 2.2 and this SECTION 2.8, and, for any conversion of a
Eurodollar Rate Advance other than at the end of an Interest Period, subject to
payment of amounts payable under SECTION 4.4, to convert all or any part of a
Revolving Loan of any Type into any other Type or Types of Loans.
(b) AUTOMATIC CONVERSION AND CONTINUATION. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall continue as
Eurodollar Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have given the
Agent notice in accordance with SECTION 2.8(D) requesting that, at the end of
such Interest Period, such Eurodollar Rate Loans continue as a Eurodollar Rate
Loan.
(c) NO CONVERSION POST-DEFAULT OR POST-UNMATURED DEFAULT. Notwithstanding
anything to the contrary contained in SECTION 2.8(A) or SECTION 2.8(B), no
Revolving Loan may be converted into or continued as a Eurodollar Rate Loan
(except with the consent of the Required Lenders) when any Default or Unmatured
Default has occurred and is continuing.
(d) CONVERSION/CONTINUATION NOTICE. The Borrower shall give the Agent
irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of each conversion of a
Floating Rate Loan into a Eurodollar Rate Loan or continuation of a Eurodollar
Rate Loan not later than 10:00 a.m. (Chicago time) three (3) Business Days prior
to the date of the requested conversion or continuation, specifying: (i) the
requested date (which shall be a Business Day) of such
27
conversion or continuation; (ii) the amount and Type of the Loan to be converted
or continued; and (iii) the amount of Eurodollar Rate Loan(s) into which such
Loan is to be converted or continued and the duration of the Interest Period
applicable thereto.
2.9 DEFAULT RATE. After the occurrence and during the continuance of a
Default, at the option of the Agent or at the direction of the Required Lenders,
the interest rate(s) applicable to the Obligations shall be equal to the
Floating Rate plus two percent (2.0%) per annum and fees payable under SECTION
3.7 with respect to standby Letters of Credit shall be increased by two percent
(2.0%) per annum.
2.10 METHOD OF PAYMENT. All payments of principal, interest, and fees
hereunder shall be made, without setoff, deduction or counterclaim, in
immediately available funds to the Agent at the Agent's address specified
pursuant to ARTICLE XIV, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, by 2:00 p.m. (Chicago time)
on the date when due and shall be made ratably among the Lenders (unless such
amount is not to be shared ratably in accordance with the terms hereof). Each
payment delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds which the Agent
received at its address specified pursuant to ARTICLE XIV or at any Lending
Installation specified in a notice received by the Agent from such Lender. The
Borrower authorizes the Agent to charge the account of the Borrower maintained
with Bank One for each payment of principal, interest, fees and other amounts as
it becomes due hereunder.
2.11 REVOLVING NOTES, TELEPHONIC NOTICES. Each Lender is authorized to
record the principal amount of each of its Revolving Loans and each repayment
with respect to its Revolving Loans on the schedule attached to its respective
Revolving Note; PROVIDED, HOWEVER, that the failure to so record shall not
affect the Borrower's obligations under any such Revolving Note. The Borrower
authorizes the Lenders and the Agent to extend Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be acting on
behalf of the Borrower. The Borrower agrees to deliver promptly to the Agent a
written confirmation, signed by an Authorized Officer, if such confirmation is
requested by the Agent or any Lender, of each telephonic notice. If the written
confirmation differs in any material respect from the action taken by the Agent
and the Lenders, (i) the telephonic notice shall govern absent manifest error
and (ii) the Agent or the Lender, as applicable, shall promptly notify the
Authorized Officer who provided such confirmation of such difference.
2.12 PROMISE TO PAY; INTEREST AND COMMITMENT FEES; INTEREST PAYMENT DATES;
INTEREST AND FEE BASIS; TAXES; LOAN AND CONTROL ACCOUNTS.
(a) PROMISE TO PAY. The Borrower unconditionally promises to pay when due
the principal amount of each Loan and all other Obligations incurred by it, and
to pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the Notes.
(b) INTEREST PAYMENT DATES. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof and at maturity (whether by acceleration or
otherwise). Interest accrued on each Eurodollar Rate Loan shall be payable on
the last day of its applicable Interest Period, on any
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date on which the Eurodollar Rate Loan is prepaid, whether by acceleration or
otherwise, and at maturity; PROVIDED, HOWEVER, interest accrued on each
Eurodollar Rate Loan having an Interest Period longer than three months shall
also be payable on the last day of each three-month interval during such
Interest Period. Interest accrued on the principal balance of all other
Obligations shall be payable in arrears (i) on the last day of each calendar
month, commencing on the first such day following the incurrence of such
Obligation, (ii) upon repayment thereof in full or in part, and (iii) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).
(c) COMMITMENT FEES.
(i) The Borrower shall pay to the Agent, for the account of the
Lenders in accordance with their Pro Rata Shares, from and after the
Effective Date until the date on which the Aggregate Commitment shall be
terminated in whole, a commitment fee accruing at the rate of the then
Applicable Commitment Fee Percentage, on the amount by which (A) the
Aggregate Commitment in effect from time to time exceeds (B) the Revolving
Credit Obligations in effect from time to time. All such commitment fees
payable under this CLAUSE (C) shall be payable quarterly in arrears on
each Payment Date occurring after the Effective Date (with the first such
payment being calculated for the period from the Effective Date and ending
on such Payment Date), and, in addition, on the date on which the
Aggregate Commitment shall be terminated in whole.
(ii) The Borrower agrees to pay to the Agent for the sole account of
the Agent and the Arranger (unless otherwise agreed between the Agent or
the Arranger and any Lender) the fees set forth in the letter agreement
dated November 1, 1998 between the Agent and/or the Arranger and the
Borrower entered into from time to time, payable at the times and in the
amounts set forth therein.
(d) Interest and Fee Basis; Applicable Eurodollar Margin, Applicable
Floating Rate Margin and Applicable Commitment Fee Percentage.
(i) Interest and fees shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest shall be payable for the day an
Obligation is incurred but not for the day of any payment on the amount
paid if payment is received prior to 2:00 p.m. (Chicago time) at the place
of payment. If any payment of principal of or interest on a Loan or any
payment of any other Obligations shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall
be included in computing interest in connection with such payment.
(ii) The Applicable Eurodollar Margin, Applicable Floating Rate
Margin and Applicable Commitment Fee Percentage shall be determined from
time to time by reference to the table set forth below, on the basis of
the then applicable Leverage Ratio as described in this (D); provided,
however, if utilizing the Leverage Ratio instead of the "Adjusted Leverage
Ratio" (as defined below) would result in lowering the Applicable
Eurodollar Margin, Applicable Floating Rate Margin and Applicable
Commitment Fee Percentage by more than one Level as set forth in the table
below, then the Applicable
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Eurodollar Margin, Applicable Floating Rate Margin and Applicable
Commitment Fee Percentage shall be the Level that is one Level lower than
the Level determined using the Adjusted Leverage Ratio. For purposes
hereof "Adjusted Leverage Ratio" shall mean the Leverage Ratio calculated
utilizing EBITDA without taking into account the adjustments set forth in
CLAUSE (IX) in the definition thereof.
---------------------------------------------------------------------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
--------------- ------------------- ------------------- ------------------- ------------------- ------------------ --------------
LEVERAGE RATIO LESS THAN OR EQUAL GREATER THAN 3.00 GREATER THAN 3.50 GREATER THAN 4.00 GREATER THAN 4.50 GREATER THAN
TO 3.00 TO 1.00 TO 1.00 AND LESS TO 1.00 AND LESS TO 1.00 AND LESS TO 1.00 AND LESS 5.00 TO 1.00
THAN OR EQUAL TO THAN OR EQUAL TO THAN OR EQUAL TO THAN OR EQUAL TO
3.50 TO 1.00 4.00 TO 1.00 4.50 TO 1.00 5.00 TO 1.00
--------------- ------------------- ------------------- ------------------- ------------------- ------------------ --------------
APPLICABLE
COMMITMENT
FEE PERCENTAGE 0.375% 0.375% 0.50% 0.50% 0.50% 0.50%
--------------- ------------------- ------------------- ------------------- ------------------- ------------------ --------------
APPLICABLE
EURODOLLAR
RATE MARGIN
AND APPLICABLE
L/C FEE
PERCENTAGE 2.00% 2.25% 2.50% 2.75% 3.00% 3.25%
--------------- ------------------- ------------------- ------------------- ------------------- ------------------ --------------
APPLICABLE
FLOATING RATE
MARGIN 0% 0.25% 0.50% 0.75% 1.00% 1.25%
--------------- ------------------- ------------------- ------------------- ------------------- ------------------ --------------
For purposes of this SECTION 2.12(D)(II), the Leverage Ratio shall be determined
as of the last day of each fiscal quarter based upon (A) for Total Debt, Total
Debt as of the last day of each such fiscal quarter; and (B) for EBITDA, EBITDA
for the twelve-month period ending on such day calculated as set forth in the
definition thereof. Upon receipt of the financial statements delivered pursuant
to SECTION 7.1(A)(I) (subject to adjustment upon receipt of the financial
statements delivered pursuant to SECTION 7.1(A)(II)), the Applicable Eurodollar
Margin, Applicable Floating Rate Margin and Applicable Commitment Fee Percentage
shall be adjusted, such adjustment being effective five (5) Business Days
following the Agent's receipt of such financial statements and the compliance
certificate required to be delivered in connection therewith pursuant to SECTION
7.1(A)(III); provided, that if the Borrower shall not have timely delivered its
financial statements in accordance with SECTION 7.1(A)(I) or (II), as
applicable, then commencing on the date upon which such financial statements
should have been delivered and continuing until such financial statements are
actually delivered, it shall be assumed for purposes of determining the
Applicable Eurodollar Margin, Applicable Floating Rate Margin and Applicable
Commitment Fee Percentage that the Leverage Ratio was greater than 5.00 to 1.0.
(e) Taxes.
(i) Any and all payments by the Borrower hereunder shall be made
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings or any
liabilities with respect thereto including those arising after the
Original Closing Date hereof as a result of the adoption of or any change
in any law, treaty, rule, regulation, guideline or determination of a
Governmental Authority or any change in the interpretation or application
thereof by a Governmental Authority but excluding, in the case of each
Lender and the Agent, such taxes (including income taxes, franchise taxes
and branch profit taxes) as are imposed on or measured by
30
such Lender's or Agent's, as the case may be, income by the United States
of America or any Governmental Authority of the jurisdiction under the
laws of which such Lender or Agent, as the case may be, is organized (all
such non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities which the Agent or a Lender determines to be
applicable to this Agreement, the other Loan Documents, the Commitments,
the Loans or the Letters of Credit being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under the other Loan
Documents to any Lender or the Agent (other than due to a Lender's failure
to comply with SECTION 2.12(E)(VII)), (A) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
SECTION 2.12(E)) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (B) the Borrower shall make such deductions, and (C) the Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law. If a withholding tax of
the United States of America or any other Governmental Authority shall be
or become applicable (y) after the Original Closing Date, to such payments
by the Borrower made to the Lending Installation or any other office that
a Lender may claim as its Lending Installation, or (z) after such Lender's
selection and designation of any other Lending Installation, to such
payments made to such other Lending Installation, such Lender shall use
reasonable efforts to make, fund and maintain its Loans through another
Lending Installation of such Lender in another jurisdiction so as to
reduce the Borrower's liability hereunder, if the making, funding or
maintenance of such Loans through such other Lending Installation of such
Lender does not, in the judgment of such Lender, otherwise adversely
affect such Loans, or obligations under the Commitments or such Lender.
(ii) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges,
or similar levies which arise from any payment made hereunder, from the
issuance of Letters of Credit hereunder, or from the execution, delivery
or registration of, or otherwise with respect to, this Agreement, the
other Loan Documents, the Commitments, the Loans or the Letters of Credit
(hereinafter referred to as "Other Taxes").
(iii) The Borrower indemnifies each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any Governmental Authority on amounts
payable under this SECTION 2.12(E)) paid by such Lender or the Agent (as
the case may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days after the date such
Lender or the Agent (as the case may be) makes written demand therefor. A
certificate as to any additional amount payable to any Lender or the Agent
under this SECTION 2.12(E) submitted to the Borrower and the Agent (if a
Lender is so submitting) by such Lender or the Agent shall show in
reasonable detail the amount payable and the calculations used to
determine such amount and shall, absent manifest error, be final,
conclusive and binding upon all parties hereto. With respect to such
deduction or withholding for or on account of any Taxes and to
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confirm that all such Taxes have been paid to the appropriate Governmental
Authorities, the Borrower shall promptly (and in any event not later than
thirty (30) days after receipt) furnish to each Lender and the Agent such
certificates, receipts and other documents as may be required (in the
judgment of such Lender or the Agent) to establish any tax credit to which
such Lender or the Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of Taxes
or Other Taxes by the Borrower, the Borrower shall furnish to the Agent
the original or a certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.12(e) shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of Credit
and the termination of this Agreement.
(vi) Without limiting the obligations of the Borrower under this
SECTION 2.12(E), each Lender that is not created or organized under the
laws of the United States of America or a political subdivision thereof
shall deliver to the Borrower and the Agent on or before the Effective
Date, or, if later, the date on which such Lender becomes a Lender
pursuant to SECTION 13.3, a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender, in a form
satisfactory to the Borrower and the Agent, to the effect that such Lender
is capable under the provisions of an applicable tax treaty concluded by
the United States of America (in which case the certificate shall be
accompanied by two executed copies of Form W-8BEN of the IRS) or under
Section 1442 of the Code (in which case the certificate shall be
accompanied by two copies of Form W-8ECI of the IRS) of receiving payments
of interest hereunder without deduction or withholding of United States
federal income tax. Each such Lender further agrees to deliver to the
Borrower and the Agent from time to time a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender
substantially in a form satisfactory to the Borrower and the Agent, before
or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Borrower and the
Agent pursuant to this SECTION 2.12(e)(vi). Further, each Lender which
delivers a certificate accompanied by Form W-8BEN of the IRS covenants and
agrees to deliver to the Borrower and the Agent within fifteen (15) days
prior to January 1, [2002], and every third (3rd) anniversary of such date
thereafter on which this Agreement is still in effect, another such
certificate and two accurate and complete original signed copies of Form
W-8BEN (or any successor form or forms required under the Code or the
applicable regulations promulgated thereunder), and each Lender that
delivers a certificate accompanied by Form W-8ECI of the IRS covenants and
agrees to deliver to the Borrower and the Agent within fifteen (15) days
prior to the beginning of each subsequent taxable year of such Lender
during which this Agreement is still in effect, another such certificate
and two accurate and complete original signed copies of IRS Form W-8ECI
(or any successor form or forms required under the Code or the applicable
regulations promulgated thereunder). Each such certificate shall certify
as to one of the following:
32
(A) that such Lender is capable of receiving payments of
interest hereunder without deduction or withholding of United States
of America federal income tax;
(B) that such Lender is not capable of receiving payments of
interest hereunder without deduction or withholding of United States
of America federal income tax as specified therein but is capable of
recovering the full amount of any such deduction or withholding from
a source other than the Borrower and will not seek any such recovery
from the Borrower; or
(C) that, as a result of the adoption of or any change in any
law, treaty, rule, regulation, guideline or determination of a
Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority after the date such
Lender became a party hereto, such Lender is not capable of
receiving payments of interest hereunder without deduction or
withholding of United States of America federal income tax as
specified therein and that it is not capable of recovering the full
amount of the same from a source other than the Borrower.
Each Lender shall promptly furnish to the Borrower and the Agent such
additional documents as may be reasonably required by the Borrower or the Agent
to establish any exemption from or reduction of any Taxes or Other Taxes
required to be deducted or withheld and which may be obtained without undue
expense to such Lender.
(f) LOAN ACCOUNT. Each Lender shall maintain in accordance with its usual
practice an account or accounts (a "LOAN ACCOUNT") evidencing the Obligations of
the Borrower to such Lender owing to such Lender from time to time, including
the amount of principal and interest payable and paid to such Lender from time
to time hereunder and under the Notes.
(g) CONTROL ACCOUNT. The Register maintained by the Agent pursuant to
SECTION 13.3(C) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Advance made hereunder, the type of Loan comprising such
Advance and any Interest Period applicable thereto, (ii) the effective date and
amount of each Assignment Agreement delivered to and accepted by it and the
parties thereto pursuant to SECTION 13.3, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder or under the Notes, (iv) the amount of any sum received by the
Agent from the Borrower hereunder and each Lender's share thereof and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(h) ENTRIES BINDING. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error,
unless the Borrower objects to information contained in the Register and each
Loan Account within thirty (30) days of the Borrower's receipt of such
information.
2.13 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND AGGREGATE
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will
notify each
33
Lender of the contents of each Aggregate Commitment reduction notice,
Commitment Increase Notice, Borrowing Notice, Continuation/Conversion
Notice, and repayment notice received by it hereunder. The Agent will
notify each Lender of the interest rate applicable to each Eurodollar Rate
Loan promptly upon determination of such interest rate and will give each
Lender prompt notice of each change in the Alternate Base Rate.
2.14 LENDING INSTALLATIONS. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Revolving Notes shall be deemed held by each Lender for the
benefit of such Lending Installation. Each Lender may, by written or facsimile
notice to the Agent and the Borrower, designate a Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.15 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.16 TERMINATION DATE. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement on the
Termination Date, until all of the Obligations (other than contingent indemnity
obligations) shall have been fully and indefeasibly paid and satisfied, all
financing arrangements among the Borrower and the Lenders in connection with
this Agreement shall have been terminated (other than under agreements with
respect to Hedging Obligations) and all of the Letters of Credit shall have
expired, been canceled or terminated, all of the rights and remedies under this
Agreement and the other Loan Documents shall survive and the Agent shall be
entitled to retain its security interest in and to all existing and future
Collateral.
2.17 REPLACEMENT OF CERTAIN LENDERS. In the event a Lender ("AFFECTED
Lender") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the Borrower, or to fund a Revolving Loan in order to repay Swing
Line Loans pursuant to SECTION 2.1(B)(IV), which such Lender is obligated to
fund under the terms of this Agreement and which failure has not been cured,
(ii) requested compensation from the Borrower under SECTIONS 2.12(E), 4.1 or 4.2
to recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being incurred generally by the other Lenders, (iii) delivered a
notice pursuant to Section 4.3 claiming that such Lender is unable to extend
Eurodollar Rate Loans to the Borrower for reasons not generally applicable to
the other Lenders or (iv) has invoked Section 10.2, then, in any such
34
case, the Borrower or the Agent may make written demand on such Affected Lender
(with a copy to the Agent in the case of a demand by the Borrower and a copy to
the Borrower in the case of a demand by the Agent) for the Affected Lender to
assign, and such Affected Lender shall use its best efforts to assign pursuant
to one or more duly Assignment Agreements five (5) Business Days after the date
of such demand, to one or more financial institutions that comply with the
provisions of SECTION 13.3(a) which the Borrower or the Agent, as the case may
be, shall have engaged for such purpose ("REPLACEMENT LENDER"), all of such
Affected Lender's rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, its Commitment, all Loans owing to it,
all of its participation interests in existing Letters of Credit, and its
obligation to participate in additional Letters of Credit hereunder) in
accordance with SECTION 13.3. The Agent agrees, upon the occurrence of such
events with respect to an Affected Lender and upon the written request of the
Borrower, to use its reasonable efforts to obtain the Commitments from one or
more financial institutions to act as a Replacement Lender. The Agent is
authorized to execute one or more of such assignment agreements as
attorney-in-fact for any Affected Lender failing to execute and deliver the same
within five (5) Business Days after the date of such demand. Further, with
respect to such assignment the Affected Lender shall have concurrently received,
in cash, all amounts due and owing to the Affected Lender hereunder or under any
other Loan Document, including, without limitation, the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment, amounts payable under
SECTIONS 2.12(E), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under SECTION 2.12(C) in the event of any replacement of
any Affected Lender under CLAUSE (II) or CLAUSE (III) of this SECTION 2.17;
PROVIDED that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of SECTIONS 2.12(E), 4.1, 4.2, 4.4, and 10.7, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under SECTION 11.8. Upon the replacement of any Affected Lender
pursuant to this SECTION 2.17, the provisions of SECTION 9.2 shall continue to
apply with respect to Advances which are then outstanding with respect to which
the Affected Lender failed to fund its Pro Rata Share and which failure has not
been cured.
ARTICLE 3
THE LETTER OF CREDIT FACILITY
3.1 OBLIGATION TO ISSUE. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties and covenants of
the Borrower herein set forth, each Issuing Bank hereby agrees to issue for the
account of the Borrower through such Issuing Bank's branches as it and the
Borrower may jointly agree, one or more Letters of Credit in accordance with
this ARTICLE III, from time to time during the period, commencing on the
Effective Date and ending on the Business Day prior to the Termination Date.
3.2 TYPES AND AMOUNTS. No Issuing Bank shall have any obligation to and no
Issuing Bank shall:
(i) issue any Letter of Credit if on the date of issuance, before or
after giving effect to the Letter of Credit requested hereunder, (A) the
Revolving Credit Obligations at
35
such time would exceed the lesser of (x) the Aggregate Commitment and (y)
the Borrowing Base at such time, or (B) the aggregate outstanding amount
of the L/C Obligations would exceed $50,000,000; or
(ii) issue any Letter of Credit which has an expiration date later
than the date which is the earlier of one (1) year after the date of
issuance thereof or five (5) Business Days immediately preceding the
Termination Date.
3.3 CONDITIONS. In addition to being subject to the satisfaction of the
conditions contained in SECTIONS 5.1 and 5.2, the obligation of an Issuing Bank
to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(i) the Borrower shall have delivered to the applicable Issuing Bank
at such times and in such manner as such Issuing Bank may reasonably
prescribe, a request for issuance of such Letter of Credit in
substantially the form of EXHIBIT F hereto, duly executed applications for
such Letter of Credit, and such other documents, instructions and
agreements as may be reasonably required pursuant to the terms thereof,
and the proposed Letter of Credit shall be reasonably satisfactory to such
Issuing Bank as to form and content; and
(ii) as of the date of issuance no order, judgment or decree of any
court, arbitrator or Governmental Authority shall purport by its terms to
enjoin or restrain the applicable Issuing Bank from issuing such Letter of
Credit and no law, rule or regulation applicable to such Issuing Bank and
no request or directive (whether or not having the force of law) from a
Governmental Authority with jurisdiction over such Issuing Bank shall
prohibit or request that such Issuing Bank refrain from the issuance of
Letters of Credit generally or the issuance of that Letter of Credit.
If any provision in a letter of credit application delivered in connection
with the foregoing is inconsistent with or more restrictive than a provision
contained in this Agreement, the provisions contained in this Agreement shall
control.
3.4 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
(a) Subject to the terms and conditions of this ARTICLE III and provided
that the applicable conditions set forth in SECTIONS 5.1 and 5.2 hereof have
been satisfied, the applicable Issuing Bank shall, on the requested date, issue
a Letter of Credit on behalf of the Borrower in accordance with such Issuing
Bank's usual and customary business practices and, in this connection, such
Issuing Bank may assume that the applicable conditions set forth in SECTION 5.2
hereof have been satisfied unless it shall have received notice to the contrary
from the Agent or a Lender or has knowledge that the applicable conditions have
not been met.
(b) The applicable Issuing Bank shall give the Agent written or telex
notice, or telephonic notice confirmed promptly thereafter in writing, of the
issuance of a Letter of Credit, provided, however, that the failure to provide
such notice shall not result in any liability on the part of such Issuing Bank.
36
(c) No Issuing Bank shall extend or amend any Letter of Credit unless the
requirements of this SECTION 3.4 are met as though a new Letter of Credit was
being requested and issued.
3.5 LETTER OF CREDIT PARTICIPATION. Unless a Lender shall have notified
the Issuing Bank, prior to its issuance of a Letter of Credit, that any
applicable condition precedent set forth in SECTIONS 5.1 and 5.2 had not then
been satisfied, immediately upon the issuance of each other Letter of Credit
hereunder, each Lender shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the applicable Issuing Bank an
undivided interest and participation in and to such Letter of Credit, the
obligations of the Borrower in respect thereof, and the liability of such
Issuing Bank thereunder (collectively, an "L/C INTEREST") in an amount equal to
the amount available for drawing under such Letter of Credit multiplied by such
Lender's Pro Rata Share. Each Issuing Bank will notify each Lender promptly upon
presentation to it of an L/C Draft or upon any other draw under a Letter of
Credit. On or before the Business Day on which an Issuing Bank makes payment of
each such L/C Draft or, in the case of any other draw on a Letter of Credit, on
demand by the Agent, each Lender shall make payment to the Agent, for the
account of the applicable Issuing Bank, in immediately available funds in an
amount equal to such Lender's Pro Rata Share of the amount of such payment or
draw. The obligation of each Lender to reimburse the Issuing Banks under this
SECTION 3.5 shall be unconditional, continuing, irrevocable and absolute;
PROVIDED, HOWEVER, the obligation of each Lender shall not extend to payments
made under a Letter of Credit resulting from the Issuing Bank's Gross Negligence
or willful misconduct in honoring any L/C Draft. In the event that any Lender
fails to make payment to the Agent of any amount due under this SECTION 3.5, the
Agent shall be entitled to receive, retain and apply against such obligation the
principal and interest otherwise payable to such Lender hereunder until the
Agent receives such payment from such Lender or such obligation is otherwise
fully satisfied; PROVIDED, HOWEVER, that nothing contained in this sentence
shall relieve such Lender of its obligation to reimburse the applicable Issuing
Bank for such amount in accordance with this SECTION 3.5.
3.6 REIMBURSEMENT OBLIGATION. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Agent, for the account of
the Lenders, the amount of each advance which may be drawn under or pursuant to
a Letter of Credit or an L/C Draft related thereto (such obligation of the
Borrower to reimburse the Agent for an advance made under a Letter of Credit or
L/C Draft being hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with
respect to such Letter of Credit or L/C Draft). If the Borrower at any time
fails to repay a Reimbursement Obligation pursuant to this SECTION 3.6, the
Borrower shall be deemed to have elected to borrow Revolving Loans from the
Lenders, as of the date of the advance giving rise to the Reimbursement
Obligation, equal in amount to the amount of the unpaid Reimbursement
Obligation. Such Revolving Loans shall be made as of the date of the payment
giving rise to such Reimbursement Obligation, automatically, without notice and
without any requirement to satisfy the conditions precedent otherwise applicable
to an Advance of Revolving Loans. Such Revolving Loans shall constitute a
Floating Rate Advance, the proceeds of which Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, the Borrower fails to repay a
Reimbursement Obligation on the day such Reimbursement Obligation arises and,
for any reason, the Lenders are unable to make or have no obligation to make
Revolving Loans, then such Reimbursement Obligation shall bear interest from and
after such day, until paid in full, at the interest rate applicable to a
Floating Rate Advance.
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3.7 LETTER OF CREDIT FEES. The Borrower agrees to pay (i) quarterly, in
arrears, on each Payment Date to the Agent for the ratable benefit of the
Lenders, except as set forth in SECTION 9.2, a letter of credit fee at a rate
per annum equal to the Applicable L/C Fee Percentage on the average daily
outstanding face amount available for drawing under all Letters of Credit, (ii)
quarterly in arrears to the Agent for the sole account of the Issuing Banks, a
fronting fee at such percentage rate per annum as shall be agreed between the
Borrower and each such Issuing Bank on the aggregate average daily outstanding
amount available for drawing under each such Issuing Bank's Letters of Credit,
payable quarterly in arrears, and (iii) to the Agent for the benefit of each
Issuing Bank, all customary fees and other issuance, amendment, document
examination, negotiation and presentment expenses and related charges in
connection with the issuance, amendment, presentation of L/C Drafts, and the
like customarily charged by the Issuing Banks with respect to standby and
commercial Letters of Credit, including, without limitation, standard
commissions with respect to commercial Letters of Credit, payable at the time of
invoice of such amounts.
3.8 ISSUING BANK REPORTING REQUIREMENTS. In addition to the notices
required by SECTION 3.4(C), each Issuing Bank shall, no later than the tenth
Business Day following the last day of each month, provide to the Agent, upon
the Agent's request, schedules, in form and substance reasonably satisfactory to
the Agent, showing the date of issue, account party, amount, expiration date and
the reference number of each Letter of Credit issued by it outstanding at any
time during such month and the aggregate amount payable by the Borrower during
such month. In addition, upon the request of the Agent, each Issuing Bank shall
furnish to the Agent copies of any Letter of Credit and any application for or
reimbursement agreement with respect to a Letter of Credit to which the Issuing
Bank is party and such other documentation as may reasonably be requested by the
Agent. Upon the request of any Lender, the Agent will provide to such Lender
information concerning such Letters of Credit.
3.9 INDEMNIFICATION; EXONERATION.
(a) In addition to amounts payable as elsewhere provided in this ARTICLE
III, the Borrower hereby agrees to protect, indemnify, pay and save harmless the
Agent, each Issuing Bank and each Lender from and against any and all
liabilities and costs which the Agent, such Issuing Bank or such Lender may
incur or be subject to as a consequence, direct or indirect, of (i) the issuance
of any Letter of Credit other than, in the case of the applicable Issuing Bank,
as a result of its Gross Negligence or willful misconduct, as determined by the
final judgment of a court of competent jurisdiction, or (ii) the failure of the
applicable Issuing Bank to honor a drawing under a Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
DE JURE or DE FACTO Governmental Authority (all such acts or omissions herein
called "GOVERNMENTAL ACTS").
(b) As among the Borrower, the Lenders, the Agent and the Issuing Banks,
the Borrower assumes all risks of the acts and omissions of, or misuse of such
Letter of Credit by, the beneficiary of any Letters of Credit. In furtherance
and not in limitation of the foregoing, subject to the provisions of the Letter
of Credit applications and Letter of Credit reimbursement agreements executed by
the Borrower at the time of request for any Letter of Credit, neither the Agent,
any Issuing Bank nor any Lender shall be responsible (in the absence of Gross
Negligence or willful misconduct in connection therewith, as determined by the
final judgment
38
of a court of competent jurisdiction): (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letters of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) for failure of the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or other similar form of
teletransmission or otherwise; (v) for errors in interpretation of technical
trade terms; (vi) for any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; (vii) for the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of Credit; and
(viii) for any consequences arising from causes beyond the control of the Agent,
the Issuing Banks and the Lenders, including, without limitation, any
Governmental Acts. None of the above shall affect, impair, or prevent the
vesting of any Issuing Bank's rights or powers under this SECTION 3.9.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of Gross Negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Agent or any Lender under any
resulting liability to the Borrower or relieve the Borrower of any of its
obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 3.9 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
3.10 CASH COLLATERAL. Notwithstanding anything to the contrary herein or
in any application for a Letter of Credit, after the occurrence and during the
continuance of Default, the Borrower shall, upon the Agent's demand, deliver to
the Agent for the benefit of the Lenders and the Issuing Banks, cash, or other
collateral of a type satisfactory to the Required Lenders, having a value, as
determined by such Lenders, equal to the aggregate outstanding L/C Obligations.
In addition, if the Revolving Credit Availability is at any time less than the
amount of contingent L/C Obligations outstanding at any time, the Borrower shall
deposit cash collateral with the Agent in an amount equal to the amount by which
such L/C Obligations exceed such Revolving Credit Availability. Any such
collateral shall be held by the Agent in a separate account appropriately
designated as a cash collateral account in relation to this Agreement and the
Letters of Credit and retained by the Agent for the benefit of the Lenders and
the Issuing Banks as collateral security for the Borrower's obligations in
respect of this Agreement and each of the Letters of Credit and L/C Drafts. Such
amounts shall be applied to reimburse the Issuing Banks for drawings or payments
under or pursuant to Letters of Credit or L/C Drafts, or if no such
reimbursement is required, to payment of such of the other Obligations as the
Agent shall determine. If no Default shall be continuing, amounts remaining in
any cash collateral account established pursuant to this SECTION 3.10 which are
not to be applied to reimburse an Issuing
39
Bank for amounts actually paid or to be paid by such Issuing Bank in respect of
a Letter of Credit or L/C Draft, shall be returned to the Borrower (after
deduction of the Agent's expenses incurred in connection with such cash
collateral account).
ARTICLE 4
CHANGE IN CIRCUMSTANCES
4.1 YIELD PROTECTION. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the Original Closing Date and having general
applicability to all banks within the jurisdiction in which such Lender operates
(excluding, for the avoidance of doubt, the effect of and phasing in of capital
requirements or other regulations or guidelines passed prior to the Original
Closing Date), or any interpretation or application thereof by any Governmental
Authority charged with the interpretation or application thereof, or the
compliance of any Lender therewith,
(a) to the extent not otherwise covered pursuant to the provisions of
SECTION 2.12(E), subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due from the Borrower
(excluding, in the case of each Lender and the Agent, such taxes (including
income taxes, franchise taxes and branch profit taxes) as are imposed on or
measured by such Lender's or Agent's, as the case may be, income by the United
States of America or any Governmental Authority of the jurisdiction under the
laws of which such Lender or Agent, as the case may be, is organized ), or
changes the basis of taxation of payments to any Lender in respect of its Loans,
its L/C Interests, the Letters of Credit or other amounts due it hereunder, or
(b) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar Rate Loans)
with respect to its Loans, L/C Interests or the Letters of Credit, or
(c) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making, funding or
maintaining the Loans, the L/C Interests or the Letters of Credit or reduces any
amount received by any Lender or any applicable Lending Installation in
connection with Loans or Letters of Credit, or requires any Lender or any
applicable Lending Installation to make any payment calculated by reference to
the amount of Loans or L/C Interests held or interest received by it or by
reference to the Letters of Credit, by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that
Lender of making, renewing or maintaining its Loans, L/C Interests or Letters of
Credit or to reduce any amount received under this Agreement, then, within 15
days after receipt by the Borrower of written demand by such Lender pursuant to
SECTION 4.5, the Borrower shall pay such Lender that portion of such increased
expense incurred or reduction in an amount received which such Lender determines
is attributable to making, funding and maintaining its Loans, L/C Interests,
Letters of Credit and its Commitment.
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4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Loans, L/C Interests, the Letters of Credit or its obligation to
make Loans hereunder, then, within 15 days after receipt by the Borrower of
written demand by such Lender pursuant to SECTION 4.5, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans, its L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder (after taking into account such
Lender's policies as to capital adequacy). "CHANGE" means (i) any change after
the Original Closing Date of this Agreement in the "Risk-Based Capital
Guidelines" (as defined below) excluding, for the avoidance of doubt, the effect
of any phasing in of such Risk-Based Capital Guidelines or any other capital
requirements passed prior to the Original Closing Date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the Original Closing Date and having general
applicability to all banks and financial institutions within the jurisdiction in
which such Lender operates which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the Original
Closing Date, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the Original Closing Date.
4.3 AVAILABILITY OF TYPES OF ADVANCES. If (i) any Lender determines that
maintenance of its Eurodollar Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or (ii) the Required Lenders determine that (x)
deposits of a type and maturity appropriate to match fund Eurodollar Rate
Advances are not available or (y) the interest rate applicable to a Type of
Advance does not accurately reflect the cost of making or maintaining such an
Advance, then the Agent shall suspend the availability of the affected Type of
Advance and, in the case of any occurrence set forth in CLAUSE (I) require any
Advances of the affected Type to be converted to Floating Rate Loans until the
circumstances giving rise to such suspension no longer exist.
4.4 FUNDING INDEMNIFICATION. If any payment of a Eurodollar Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment, or otherwise, or a Eurodollar Rate
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, or a Eurodollar Rate Advance is converted on a day
other than the last day of the applicable Interest Period, the Borrower
indemnifies each Lender for any loss or cost incurred by it resulting therefrom
(including loss of profit other than loss of profit represented by the
Applicable Eurodollar Margin which would have been payable for such Interest
Period), including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Eurodollar Rate Advance.
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4.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. If reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its
Eurodollar Rate Loans to reduce any liability of the Borrower to such Lender
under SECTIONS 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under SECTION 4.3, so long as such designation is not disadvantageous to such
Lender. Each Lender requiring compensation pursuant to SECTION 2.12(E) or to
this ARTICLE IV shall use its reasonable efforts to notify the Borrower and the
Agent in writing of any Change, law, policy, rule, guideline or directive giving
rise to such demand for compensation not later than ninety (90) days following
the date upon which the responsible account officer of such Lender knows or
should have known of such Change, law, policy, rule, guideline or directive;
PROVIDED, HOWEVER, that the failure to so notify the Borrower shall not affect
the Borrower's obligations under this SECTION 4.5. Any demand for compensation
pursuant to this ARTICLE IV shall be in writing and shall state the amount due,
if any, under SECTION 4.1, 4.2 or 4.4 and shall set forth in reasonable detail
the calculations upon which such Lender determined such amount. Such written
demand shall be rebuttably presumed correct for all purposes. Determination of
amounts payable under such Sections in connection with a Eurodollar Rate Loan
shall be calculated as though each Lender funded its Eurodollar Rate Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. The obligations of the
Borrower under SECTIONS 4.1, 4.2 and 4.4 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 ADVANCES AND LETTERS OF CREDIT. The Lenders shall not be required to
make further Loans or issue any Letters of Credit or purchase any participations
therein unless (i) no law, regulation, order, judgment or decree of any
Governmental Authority shall, and the Agent shall not have received any notice
that litigation is pending or threatened which is likely to, (A) enjoin,
prohibit or restrain the making of the Loans or (B) impose or result in the
imposition of a Material Adverse Effect; and (ii) the Borrower has furnished on
or before the Effective Date to the Agent each of the following, with sufficient
copies for the Lenders, all in form and substance satisfactory to the Agent and
the Lenders:
(a) Copies, certified by the Secretary or Assistant Secretary of the
Borrower and each Guarantor, of its articles or certificate of incorporation
(which copies for the Borrower shall be certified as of a recent date by the
appropriate governmental officer in its respective jurisdiction of
incorporation), its by-laws and of its Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by counsel for any
Lender) authorizing the execution of the Loan Documents;
(b) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower and each Guarantor, which shall identify by name and
title and bear the signature of the officers of the Borrower and Guarantors
authorized to sign the Loan Documents and, in the case of the Borrower, to
request Loans and Letters of Credit hereunder, upon which certificate the
Lenders shall be entitled to rely until informed of any change in writing by the
Borrower;
42
(c) A certificate, in form and substance satisfactory to the Agent, signed
by the chief financial officer or treasurer of the Borrower, (i) stating that on
the Effective Date no Default or Unmatured Default has occurred and is
continuing, and (ii) setting forth the calculation of the Leverage Ratio as of
September 30, 2000;
(d) A written opinion of the Borrower's and Guarantors' general counsel
and outside counsel, addressed to the Agent and the Lenders, in substantially
the form attached as Exhibit G hereto;
(e) Revolving Notes payable to the order of each of the applicable Lenders
dated February 11, 1998;
(f) A Swing Line Note payable to the order of Bank One dated February 11,
1998;
(g) Written money transfer instructions reasonably requested by the Agent,
addressed to the Agent and signed by an Authorized Officer;
(h) The Guaranty executed by each of the Guarantors;
(i) The Pledge Agreements executed by the Borrower in connection with
which the Borrower shall have delivered stock certificates, stock powers and
UCC-1 financing statements;
(j) The Security Agreements executed by Borrower and each of its
Subsidiaries, together with all financing statements and other documents,
agreements and instruments required by the Agent in connection therewith;
(k) The payment of an amendment fee in the amount of $875,000 to the Agent
for the benefit of each Lender ratably in proportion to such Lender's respective
Pro Rata Share together with such other fees as the Borrower has agreed in
writing to pay to the Agent;
(l) The closing of the modification of the Securitization Facility on
terms satisfactory to the Lenders, including an extension of the Securitization
Facility for 365 days; and
(m) Such other documents as the Agent or any Lender or its counsel may
have reasonably requested.
5.2 EACH ADVANCE AND LETTER OF CREDIT. The Lenders shall not be required
to make any Advance, issue any Letter of Credit or purchase any participation
therein, unless on the applicable Borrowing Date, or in the case of a Letter of
Credit, the date on which the Letter of Credit is to be issued:
(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in ARTICLE VI are true
and correct as of such Borrowing Date (unless such representation and warranty
expressly relates to an earlier date or is no longer true solely as a result of
transactions permitted by this Agreement).
43
Each Borrowing Notice with respect to each such Advance and the letter of
credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained in
SECTIONS 5.2(I) and (II) have been satisfied. If any Lender has a reasonable
basis for believing a Default or Unmatured Default may have occurred and is
continuing or that the Borrower is not able to make one or more of the
representations and warranties set forth in ARTICLE VI, such Lender may require
a duly completed officer's certificate in substantially the form of EXHIBIT H
hereto and/or a duly completed compliance certificate in substantially the form
of EXHIBIT I hereto as a condition to making an Advance or the issuance of any
Letter of Credit.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows to each Lender and the
Agent as of the Effective Date, and thereafter on each date as required by
SECTION 5.2:
6.1 ORGANIZATION; CORPORATE POWERS. The Borrower and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) is duly
qualified to do business and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing could not
reasonably be expected to have a Material Adverse Effect and (iii) has all
requisite corporate power and authority to own, operate and encumber its
property and to conduct its business as presently conducted and as proposed to
be conducted.
6.2 AUTHORITY.
(a) The Borrower and each of its Subsidiaries has the requisite power and
authority to execute, deliver and perform each of the Loan Documents to be
executed by it, (b) The execution, delivery, performance and filing, as the case
may be, of each of the Loan Documents to which the Borrower or any of its
Subsidiaries is party, and the consummation of the transactions contemplated
thereby, have been duly approved by the respective boards of directors and, if
necessary, the shareholders of the Borrower and its Subsidiaries, and such
approvals have not been rescinded. No other corporate action or proceedings on
the part of the Borrower or its Subsidiaries are necessary to consummate such
transactions.
(b) Each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party has been duly executed, delivered or filed, as the case
may be, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, is in full force and effect
and the Borrower and its Subsidiaries have performed and complied with all the
material terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by such parties on or before the
Effective Date, and no unmatured default, default or breach of any material
covenant by any such party exists thereunder.
6.3 NO CONFLICT; GOVERNMENTAL CONSENTS. The execution, delivery and
performance of each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party do not and will not (i) conflict with the certificate or
articles of incorporation or by-laws of the
44
Borrower or any such Subsidiary, (ii) constitute a tortious interference with
any Contractual Obligation of any Person or conflict with, result in a breach of
or constitute (with or without notice or lapse of time or both) a default under
any Requirement of Law (including, without limitation, any Environmental
Property Transfer Act) or Contractual Obligation of the Borrower or any such
Subsidiary, or require termination of any Contractual Obligation, except such
interference, breach, default or termination which individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect,
(iii) result in or require the creation or imposition of any Lien whatsoever
upon any of the property or assets of the Borrower or any such Subsidiary, other
than Liens permitted by the Loan Documents, or (iv) require any approval of the
Borrower's or any such Subsidiary's shareholders except such as have been
obtained. The execution, delivery and performance of each of the Loan Documents
to which the Borrower or any of its Subsidiaries is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, including under any
Environmental Property Transfer Act, except filings, consents or notices which
have been made, obtained or given, or which, if not made, obtained or given,
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
6.4 FINANCIAL STATEMENTS. The consolidated financial statements of the
Borrower and its Subsidiaries dated June 30, 2000 and furnished on behalf of the
Borrower to financial institutions invited to participate in the credit facility
evidenced by this Agreement, fairly present, in conformity with generally
accepted accounting principles, the consolidated financial condition of the
Borrower and such Subsidiaries as of the dates contained therein and their
consolidated results of operations and cash flows for such periods stated.
6.5 NO MATERIAL ADVERSE CHANGE. Since December 31, 1999, there has
occurred no event or circumstance which has had or could reasonably be expected
to have a Material Adverse Effect.
6.6 TAXES.
(a) Tax Examinations. All material deficiencies which have been asserted
against the Borrower or any of the Borrower's Subsidiaries as a result of any
federal, state, local or foreign tax examination for each taxable year in
respect of which an examination has been conducted have been fully paid or
finally settled or are being contested in good faith, and as of the Effective
Date no issue has been raised by any taxing authority in any such examination
which, by application of similar principles, reasonably can be expected to
result in assertion by such taxing authority of a material deficiency for any
other year not so examined which has not been reserved for in the Borrower's
consolidated financial statements to the extent, if any, required by Agreement
Accounting Principles.
(b) Payment of Taxes. All tax returns and reports of the Borrower and its
Subsidiaries required to be filed have been timely filed, and all taxes,
assessments, fees and other governmental charges thereupon and upon their
respective property, assets, income and franchises which are shown in such
returns or reports to be due and payable have been paid except those items which
are being contested in good faith and have been reserved for in accordance with
Agreement Accounting Principles or for which the failure to file could not
reasonably be expected to have a Material Adverse Effect. The Borrower has no
knowledge
45
of any proposed tax assessment against the Borrower or any of its Subsidiaries
that will have or could reasonably be expected to have a Material Adverse
Effect.
6.7 LITIGATION; LOSS CONTINGENCIES AND VIOLATIONS. There is no action,
suit, proceeding, arbitration or (to the Borrower's knowledge after diligent
inquiry) investigation before or by any Governmental Authority or private
arbitrator pending or, to the Borrower's knowledge after diligent inquiry,
threatened against the Borrower or any of its Subsidiaries or any property of
any of them (i) challenging the validity or the enforceability of any material
provision of the Loan Documents or (ii) which will have or could reasonably be
expected to have a Material Adverse Effect. There is no material loss
contingency within the meaning of Agreement Accounting Principles which has not
been reflected in the consolidated financial statements of the Borrower and its
Subsidiaries prepared and delivered pursuant to SECTION 7.1(A) for the fiscal
period during which such material loss contingency was incurred. Neither the
Borrower nor any of its Subsidiaries is (i) in violation of any applicable
Requirements of Law which violation will have or could reasonably be expected to
have a Material Adverse Effect, or (ii) subject to or in default with respect to
any final judgment, writ, injunction, restraining order or order of any nature,
decree, rule or regulation of any court or Governmental Authority which will
have or could reasonably be expected to have a Material Adverse Effect.
6.8 SUBSIDIARIES. SCHEDULE 6.8 to this Agreement (i) contains a
description as of the Effective Date (or as of the date of any supplement
thereto) of the corporate structure of, the Borrower and its Subsidiaries and
any other Person in which the Borrower or any of its Subsidiaries holds an
Equity Interest; and (ii) accurately sets forth as of the Effective Date (or as
of the date of any supplement thereto) (A) the correct legal name, the
jurisdiction of incorporation and the jurisdictions in which each of the
Borrower and the Subsidiaries of the Borrower is qualified to transact business
as a foreign corporation, (B) for each Subsidiary of the Borrower which is not a
wholly-owned Subsidiary, the authorized, issued and outstanding shares of each
class of Capital Stock of such Subsidiaries and the owners of such shares (both
as of the Effective Date and on a fully-diluted basis), and (C) a summary of the
direct and indirect partnership, joint venture, or other Equity Interests, if
any, of the Borrower and each Subsidiary of the Borrower in any Person that is
not a corporation. After the formation or acquisition of any New Subsidiary
permitted under SECTION 7.3(G)(II), if requested by the Agent, the Borrower
shall provide a supplement to Schedule 6.8 or as permitted to exist under
SECTION 7.2(F) to this Agreement. None of the issued and outstanding Capital
Stock of the Borrower or any of its Subsidiaries is subject to any redemption or
repurchase agreement. The outstanding Capital Stock of the Borrower and each of
the Borrower's Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable. The Borrower has no Subsidiaries other than (i) the Subsidiaries
set forth on SCHEDULE 6.8 and (ii) any Subsidiaries acquired in connection with
a Permitted Acquisition, in connection with which the Borrower shall have
provided all of the documents, instruments and agreements as required by this
Agreement.
6.9 ERISA. No Benefit Plan has incurred any material accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code)
whether or not waived. Neither the Borrower nor any member of the Controlled
Group has incurred any material liability to the PBGC which remains outstanding
other than the payment of premiums, and there are no premium payments which have
become due which are unpaid. Schedule B to the most recent annual report filed
with the IRS with respect to each Benefit Plan and, if so
46
requested, furnished to the Lenders, is complete and accurate. Since the date of
each such Schedule B, there has been no material adverse change in the funding
status or financial condition of the Benefit Plan relating to such Schedule B.
Neither the Borrower nor any member of the Controlled Group has (i) failed to
make a required contribution or payment to a Multiemployer Plan or (ii) made a
complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a
Multiemployer Plan, in either event which could result in any material
liability. Neither the Borrower nor any member of the Controlled Group has
failed to make a required installment or any other required payment under
Section 412 of the Code, in either case involving any material amount, on or
before the due date for such installment or other payment. Neither the Borrower
nor any member of the Controlled Group is required to provide security to a
Benefit Plan under Section 401(a)(29) of the Code due to a Plan amendment that
results in an increase in current liability for the plan year. Neither the
Borrower nor any of its Subsidiaries maintains or contributes to any employee
welfare benefit plan within the meaning of Section 3(1) of ERISA which provides
benefits to employees after termination of employment other than as required by
Section 601 of ERISA. Each Plan which is intended to be qualified under Section
401(a) of the Code as currently in effect is so qualified, and each trust
related to any such Plan is exempt from federal income tax under Section 501(a)
of the Code as currently in effect. The Borrower and all Subsidiaries are in
compliance in all material respects with the responsibilities, obligations and
duties imposed on them by ERISA and the Code with respect to all Plans. Neither
the Borrower nor any of its Subsidiaries nor any fiduciary of any Plan has
engaged in a nonexempt prohibited transaction described in Sections 406 of ERISA
or 4975 of the Code which could reasonably be expected to subject the Borrower
or any Guarantor to material liability. Neither the Borrower nor any member of
the Controlled Group has taken or failed to take any action which would
constitute or result in a Termination Event, which action or inaction could
reasonably be expected to subject the Borrower to material liability. Neither
the Borrower nor any Subsidiary is subject to any liability under Sections 4063,
4064, 4069, 4204 or 4212(c) of ERISA and no other member of the Controlled Group
is subject to any liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of
ERISA which could reasonably be expected to subject the Borrower or any
Guarantor to material liability. Neither the Borrower nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement. For purposes of this SECTION 6.9 "material" means any
noncompliance or basis for liability which could reasonably be likely to subject
the Borrower or any of its Subsidiaries to liability individually or in the
aggregate for all such matters in excess of $10,000,000. Each Foreign Pension
Plan is in compliance in all material respects with all laws, regulations and
rules applicable thereto and the respective requirements of the governing
documents for such Plan. The aggregate of the liabilities to provide all of the
accrued benefits under any Foreign Employee Benefit Plan does not exceed the
current fair market value of the assets held in the trust or other funding
vehicle for such Plan.
6.10 ACCURACY OF INFORMATION. The information, exhibits and reports
furnished by or on behalf of the Borrower and any of its Subsidiaries to the
Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents, and all certificates and documents delivered to the
Agent and the Lenders pursuant to the terms thereof, taken as a whole, do not
contain as of the date furnished any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements contained
herein or therein, taken as a whole, in light of the circumstances under which
they were made, not misleading.
47
6.11 SECURITIES ACTIVITIES. 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.
6.12 MATERIAL AGREEMENTS. Neither the Borrower nor any of its Subsidiaries
is a party to any Contractual Obligation or subject to any charter or other
corporate restriction which individually or in the aggregate will have or could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries has received notice or has knowledge that (i) it is
in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, or (ii) any condition exists which, with the giving of notice
or the lapse of time or both, would constitute a default with respect to any
such Contractual Obligation, in each case, except where such default or
defaults, if any, individually or in the aggregate will not have or could not
reasonably be expected to have a Material Adverse Effect.
6.13 COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
6.14 ASSETS AND PROPERTIES. The Borrower and each of its Subsidiaries has
good and marketable title to all of its assets and properties (tangible and
intangible, real or personal) owned by it or a valid leasehold interest in all
of its leased assets (except insofar as marketability may be limited by any laws
or regulations of any Governmental Authority affecting such assets), except
where the failure to have any such title will not have or could not reasonably
be expected to have a Material Adverse Effect, and all such assets and property
are free and clear of all Liens, except Liens permitted under SECTION 7.3(C).
Substantially all of the assets and properties owned by, leased to or used by
the Borrower and/or each such Subsidiary of the Borrower are in adequate
operating condition and repair, ordinary wear and tear excepted. Neither this
Agreement nor any other Loan Document, nor any transaction contemplated under
any such agreement, will affect any right, title or interest of the Borrower or
such Subsidiary in and to any of its assets in a manner that will have or could
reasonably be expected to have a Material Adverse Effect.
6.15 STATUTORY INDEBTEDNESS RESTRICTIONS. Neither the Borrower nor any of
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal, state or local statute,
ordinance or regulation which limits its ability to incur indebtedness or its
ability to consummate the transactions contemplated hereby.
6.16 INSURANCE. The Borrower's and its Subsidiaries' insurance policies
and programs reflect coverage that is reasonably consistent with prudent
industry practice.
6.17 LABOR MATTERS. As of the Effective Date, to the Borrower's and its
Subsidiaries' knowledge, there are no material labor disputes to which the
Borrower or any of its Subsidiaries may become a party, including, without
limitation, any strikes, lockouts or other disputes relating to such Persons'
plants and other facilities.
48
6.18 ENVIRONMENTAL MATTERS.
(a) (i) The operations of the Borrower and its Subsidiaries comply in all
material respects with Environmental, Health or Safety Requirements of Law;
(ii) The Borrower and its Subsidiaries have all material permits,
licenses or other authorizations required under Environmental, Health or
Safety Requirements of Law and are in material compliance with such
permits;
(iii) neither the Borrower, any of its Subsidiaries nor any of their
respective present property or operations, or, to the best of, the
Borrower's or any of its Subsidiaries' knowledge, any of their respective
past property or operations, are subject to or the subject of, any
investigation known to the Borrower or any of its Subsidiaries, any
judicial or administrative proceeding, order, judgment, decree, settlement
or other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material
remedial action; or (C) any material claims or liabilities arising from
the Release or threatened Release of a Contaminant into the environment;
(iv) there is not now, nor to the best of the Borrower's or any of
its Subsidiaries' knowledge has there ever been on or in the property of
the Borrower or any of its Subsidiaries any landfill, waste pile,
underground storage tanks, aboveground storage tanks, surface impoundment
or hazardous waste storage facility of any kind, any polychlorinated
biphenyls (PCBs) used in hydraulic oils, electric transformers or other
equipment, or any asbestos containing material that in the case of any of
the foregoing could be reasonably expected to result in any material
claims or liabilities; and
(v) neither the Borrower nor any of its Subsidiaries has any
material Contingent Obligation in connection with any Release or
threatened Release of a Contaminant into the environment.
(b) For purposes of this SECTION 6.18 "material" means any noncompliance
or tbasis for liability which could reasonably be expected individually or in
the aggregate to have a Material Adverse Effect.
6.19 BENEFITS. Each of the Borrower and its Subsidiaries will benefit from
the financing arrangement established by this Agreement. The Agent and the
Lenders have stated and the Borrower acknowledges that, but for the agreement by
each of the Guarantors to execute and deliver the Guaranty, the Agent and the
Lenders would not have made available the credit facilities established hereby
on the terms set forth herein.
6.20 SENIOR DEBT STATUS. The Secured Obligations constitute "Senior Debt"
as defined in the Indenture and are entitled to the benefits of the
subordination provisions contained therein.
ARTICLE 7
COVENANTS
49
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than contingent indemnity obligations), unless the Required Lenders shall
otherwise give prior written consent:
7.1 REPORTING. The Borrower shall:
(A) FINANCIAL REPORTING. Furnish to the Lenders:
(I) QUARTERLY REPORTS. As soon as practicable, and in any event
within forty-five (45) days after the end of each of the first three
quarters in each fiscal year, the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such period and the related
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal quarter and for the period from the beginning
of the then current fiscal year to the end of such fiscal quarter,
certified by the chief financial officer of the Borrower on behalf of the
Borrower as fairly presenting the consolidated financial position of the
Borrower and its Subsidiaries as at the dates indicated and the results of
their operations and cash flows for the periods indicated in accordance
with Agreement Accounting Principles, subject to normal year end
adjustments. In addition, as soon as practicable, and in any event within
forty-five (45) days after the end of the fourth fiscal quarter in each
fiscal year, such financial statements and information as shall be
reasonably acceptable to the Agent as sufficient for the calculation of
the Leverage Ratio as of the end of such fiscal quarter, certified by the
chief financial officer of the Borrower.
(II) ANNUAL REPORTS. As soon as practicable, and in any event within
ninety (90) days after the end of each fiscal year, (a) the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income,
stockholders' equity and cash flows of the Borrower and its Subsidiaries
for such fiscal year, and in comparative form the corresponding figures
for the previous fiscal year and (b) an audit report on the items listed
in CLAUSE (A) hereof of independent certified public accountants of
recognized national standing, which audit report shall be unqualified and
shall state that such financial statements fairly present the consolidated
financial position of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and cash flows for the
periods indicated in conformity with Agreement Accounting Principles and
that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards. The deliveries made pursuant to
this CLAUSE (II) shall be accompanied by any management letter prepared by
the above-referenced accountants.
(III) OFFICER'S CERTIFICATE. Together with each delivery of any
financial statement (a) pursuant to CLAUSES (I) and (II) of this SECTION
7.1(A), an Officer's Certificate of the Borrower, substantially in the
form of EXHIBIT H attached hereto and made a part hereof, stating that no
Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof and (b) pursuant to
CLAUSES (I) and (II) of this SECTION 7.1(A), a compliance certificate,
substantially in the form of EXHIBIT I attached hereto and made a part
hereof, signed by the Borrower's chief financial
50
officer or treasurer, setting forth calculations for the period then
ended, which demonstrate compliance, when applicable, with the provisions
of SECTION 7.4, and which calculate the Leverage Ratio for purposes of
determining the then Applicable Eurodollar Margin, Applicable Floating
Rate Margin and Applicable Commitment Fee Percentage.
(IV) BUDGETS; BUSINESS PLANS; FINANCIAL PROJECTIONS. Not less
frequently than once during each 12-month period following the Effective
Date, a copy of the plan and forecast (including a projected balance
sheet, income statement and statement of cash flow) of the Borrower and
its Subsidiaries for the upcoming 12-month period prepared in such detail
as shall be reasonably satisfactory to the Agent.
(V) BORROWING BASE CERTIFICATES. Within 30 days after the end of
each calendar month, a completed Borrowing Base Certificate calculating
and certifying the Borrower Base as of the last day of such calendar
month, signed on behalf of the Borrower by an Authorized Officer
accompanied by a summary report by product group on the aging of all
Accounts Receivable, using a format and otherwise in a manner acceptable
to the Agent.
(B) NOTICE OF DEFAULT. Promptly upon any of the chief executive officer,
chief operating officer, chief financial officer, treasurer or controller of the
Borrower obtaining knowledge (i) of any condition or event which constitutes a
Default or Unmatured Default, or becoming aware that any Lender or Agent has
given any written notice with respect to a claimed Default or Unmatured Default
under this Agreement, or (ii) that any Person has given any written notice to
the Borrower or any Subsidiary of the Borrower or taken any other action with
respect to a claimed default or event or condition of the type referred to in
SECTION 8.1(E), deliver to the Agent and the Lenders a notice specifying (A) the
nature and period of existence of any such claimed default, Default, Unmatured
Default, condition or event, (B) the notice given or action taken by such Person
in connection therewith, and (C) what action the Borrower has taken, is taking
and proposes to take with respect thereto.
(C) LAWSUITS. (i) Promptly upon the Borrower obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or any of its
Subsidiaries or any property of the Borrower or any of its Subsidiaries, which
action, suit, proceeding, governmental investigation or arbitration exposes, or
in the case of multiple actions, suits, proceedings, governmental investigations
or arbitrations arising out of the same general allegations or circumstances
which could reasonably be expected to have a Material Adverse Effect, give
written notice thereof to the Agent and provide such other information as may be
reasonably available to enable each Lender and the Agent and its counsel to
evaluate such matters; and (ii) in addition to the requirements set forth in
CLAUSE (I) of this SECTION 7.1(C), upon request of the Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to CLAUSE (I) above or disclosed in any filing with the
Commission and provide such other information as may be reasonably available to
it that would not violate any attorney-client privilege by disclosure to the
Lenders to enable each Lender and the Agent and its counsel to evaluate such
matters.
51
(D) ERISA NOTICES. Deliver or cause to be delivered to the Agent and the
Lenders, at the Borrower's expense, the following information and notices as
soon as reasonably possible, and in any event:
(i) (A) within ten (10) Business Days after the Borrower obtains
knowledge that a Termination Event has occurred, a written statement of
the chief financial officer of the Borrower describing such Termination
Event and the action, if any, which the Borrower has taken, is taking or
proposes to take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto and (B) within ten
(10) Business Days after any member of the Controlled Group obtains
knowledge that a Termination Event has occurred which could reasonably be
expected to subject the Borrower or any member of the Controlled Group to
liability individually or in the aggregate in excess of $1,000,000, a
written statement of the chief financial officer of the Borrower
describing such Termination Event and the action, if any, which the member
of the Controlled Group has taken, is taking or proposes to take with
respect thereto, and when known, any action taken or threatened by the
IRS, DOL or PBGC with respect thereto;
(ii) within ten (10) Business Days after the Borrower or any of its
Subsidiaries obtains knowledge that a prohibited transaction (defined in
Sections 406 of ERISA and Section 4975 of the Code) has occurred which
could result in material liability, a statement of the chief financial
officer of the Borrower describing such transaction and the action which
the Borrower or such Subsidiary has taken, is taking or proposes to take
with respect thereto;
(iii) within ten (10) Business Days after the Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Code, copies of each such letter;
(iv) within ten (10) Business Days after the filing thereof with the
IRS, a copy of each funding waiver request filed with respect to any
Benefit Plan and all communications received by the Borrower or a member
of the Controlled Group with respect to such request;
(v) within ten (10) Business Days after receipt by the Borrower or
any member of the Controlled Group of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit Plan,
copies of each such notice;
(vi) within ten (10) Business Days after receipt by the Borrower or
any member of the Controlled Group of a notice from a Multiemployer Plan
regarding the imposition of withdrawal liability, copies of each such
notice;
(vii) within ten (10) Business Days after the Borrower or any member
of the Controlled Group fails to make a required installment or any other
required payment under Section 412 of the Code on or before the due date
for such installment or payment, a notification of such failure;
52
(viii)within ten (10) Business Days after the Borrower or any member
of the Controlled Group knows or has reason to know that (a) a
Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan,
or (c) the PBGC has instituted or will institute proceedings under Section
4042 of ERISA to terminate a Multiemployer Plan; and
(ix) within fifteen (15) Business Days after the establishment of
any Foreign Employee Benefit Plan or the commencement of, or obligation to
commence, contributions to any Foreign Employee Benefit Plan to which the
Borrower or any Domestic Subsidiary was not previously contributing, where
the aggregate annual contribution by the Borrower or any Domestic
Subsidiary to such plan are or could reasonably be expected to exceed
$1,000,000, notification of such establishment commencement or obligation
to commence and the amount of such contributions.
For purposes of this SECTION 7.1(D), the Borrower, any of its Subsidiaries
and any member of the Controlled Group shall be deemed to know all facts known
by the Administrator of any Plan of which the Borrower or any member of the
Controlled Group or such Subsidiary is the plan sponsor.
(E) LABOR MATTERS. Notify the Agent and the Lenders in writing, promptly
upon the Borrower's learning thereof, of (i) any material labor dispute to which
the Borrower or any of its Subsidiaries may become a party, including, without
limitation, any strikes, lockouts or other disputes relating to such Persons'
plants and other facilities and (ii) any material liability incurred under the
Worker Adjustment and Retraining Notification Act with respect to the closing of
any plant or other facility of the Borrower or any of its Subsidiaries.
(F) OTHER INDEBTEDNESS. Deliver to the Agent (i) a copy of each notice or
communication regarding potential or actual defaults (including any accompanying
officer's certificate) delivered by or on behalf of the Borrower or any of its
Subsidiaries to the holders of funded Indebtedness pursuant to the terms of the
agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice or other communication is delivered to
such holders, and (ii) a copy of each notice or other communication regarding
potential or actual defaults received by the Borrower or any of its Subsidiaries
from the from the holders of funded Indebtedness pursuant to the terms of such
Indebtedness, such delivery to be made promptly after such notice or other
communication is received by the Borrower or any such Subsidiary.
(G) OTHER REPORTS. Deliver or cause to be delivered to the Agent and the
Lenders copies of all financial statements, reports and notices, if any, sent or
made available generally by the Borrower to its securities holders or filed with
the Commission by the Borrower, all press releases made available generally by
the Borrower or any of the Borrower's Subsidiaries to the public concerning
material developments in the business of the Borrower or any such Subsidiary and
all notifications received from the Commission by the Borrower or its
Subsidiaries pursuant to the Securities Exchange Act of 1934 and the rules
promulgated thereunder (other than customary comment letters received in
connection with registration statements or other routine communications between
the Commission and the Borrower).
53
(H) ENVIRONMENTAL NOTICES. As soon as possible and in any event within ten
(10) days after receipt by the Borrower or any of its Subsidiaries, a copy of
(i) any notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release by the
Borrower, any of its Subsidiaries, or any other Person of any Contaminant into
the environment, and (ii) any notice alleging any violation of any
Environmental, Health or Safety Requirements of Law by the Borrower or any of
its Subsidiaries if, in either case, such notice or claim relates to an event
which could reasonably be expected to have a Material Adverse Effect.
(I) OTHER INFORMATION. Promptly upon receiving a request therefor from the
Agent or any Lender, prepare and deliver to the Agent and the Lenders such other
information with respect to the Borrower, any of its Subsidiaries or the
Collateral as from time to time may be reasonably requested by the Agent or any
Lender.
7.2 AFFIRMATIVE COVENANTS.
(A) CORPORATE EXISTENCE, ETC. Except for mergers permitted pursuant to
SECTION 7.3(I), the Borrower shall, and shall cause each of the Guarantors to,
at all times maintain its corporate existence and preserve and keep, or cause to
be preserved and kept, in full force and effect its rights and franchises
material to its businesses.
(B) CORPORATE POWERS; CONDUCT OF BUSINESS. The Borrower shall, and shall
cause each of its Subsidiaries to, qualify and remain qualified to do business
in each jurisdiction in which the nature of its business requires it to be so
qualified and where the failure to be so qualified will have or could reasonably
be expected to have a Material Adverse Effect. The Borrower will, and will cause
each Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted.
(C) COMPLIANCE WITH LAWS, ETC. The Borrower shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all Permits necessary for
its operations and maintain such Permits in good standing unless failure to
comply or obtain could not reasonably be expected to have a Material Adverse
Effect.
(D) PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION. The Borrower shall
pay, and cause each of its Subsidiaries to pay, (i) all taxes, assessments and
other governmental charges imposed upon it or on any of its properties or assets
or in respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by SECTION 7.3(C)) upon any of the Borrower's or such
Subsidiary's property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; PROVIDED, HOWEVER, that no such taxes,
assessments and governmental charges referred to in CLAUSE (I) above or claims
referred to in CLAUSE (II) above (and interest, penalties or fines relating
thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in
54
conformity with Agreement Accounting Principles shall have been made therefor.
The Borrower will not, nor will it permit any of its Subsidiaries to, file or
consent to the filing of any consolidated income tax return with any other
Person other than the consolidated return of the Borrower.
(E) INSURANCE. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect, insurance policies and programs reflecting coverage that is
reasonably consistent with prudent industry practice.
(F) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The Borrower
shall permit and cause each of the Borrower's Subsidiaries to permit, any
authorized representative(s) designated by either the Agent or any Lender to
visit and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and independent certified
public accountants, all upon reasonable notice and at such reasonable times
during normal business hours, as often as may be reasonably requested; PROVIDED,
that while no Default exists, all of the foregoing shall be at the expense of
the Agent or Lenders, as applicable. The Borrower shall keep and maintain, and
cause each of the Borrower's Subsidiaries to keep and maintain, in all material
respects, proper books of record and account in which entries in conformity with
Agreement Accounting Principles shall be made of all dealings and transactions
in relation to their respective businesses and activities. If a Default has
occurred and is continuing, the Borrower, upon the Agent's request, shall turn
over any such records to the Agent or its representatives.
(G) ERISA COMPLIANCE. The Borrower shall, and shall cause each of the
Borrower's Subsidiaries to, establish, maintain and operate all Plans to comply
in all material respects with the provisions of ERISA, the Code, all other
applicable laws, and the regulations and interpretations thereunder and the
respective requirements of the governing documents for such Plans, except where
the failure to comply will not or could not reasonably be expected to subject
the Borrower and its Subsidiaries to liability individually or in the aggregate
in excess of $10,000,000.
(H) MAINTENANCE OF PROPERTY. The Borrower shall cause all property used or
useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this SECTION 7.2(H) shall prevent the
Borrower from discontinuing the operation or maintenance of any of such property
if such discontinuance is, in the judgment of the Borrower, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Agent or the Lenders.
55
(I) ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance could not reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any of its Subsidiaries shall be the subject of
any proceeding or investigation pertaining to (i) the Release by the Borrower or
any of its Subsidiaries of any Contaminant into the environment or (ii) the
liability of the Borrower or any of its Subsidiaries arising from the Release by
any other Person of any Contaminant into the environment, which, in either case,
has or is reasonably likely to have a Material Adverse Effect.
(J) USE OF PROCEEDS. The Borrower shall use the proceeds of the Loans to
(i) provide funds for the additional working capital needs and other general
corporate purposes of the Borrower and its Subsidiaries and (ii) fund Permitted
Acquisitions. The Borrower will not, nor will it permit any Subsidiary to, use
any of the proceeds of the Loans to purchase or carry any "Margin Stock" or to
make any Acquisition, other than any Permitted Acquisition pursuant to Section
7.3(G).
(K) ADDITION OF GUARANTORS; ADDITION OF PLEDGED CAPITAL STOCK. The
Borrower shall cause (i) each Domestic Subsidiary that is, at any time, a
Material Subsidiary, and (ii) each other Domestic Subsidiary necessary for the
Borrower to comply with the requirements set forth in SECTION 7.3(E), to deliver
to the Agent an executed Guaranty Supplement to become a Guarantor under the
Guaranty in the form of EXHIBIT J attached hereto and appropriate corporate
resolutions, opinions and other documentation in form and substance reasonably
satisfactory to the Agent, such Guaranty Supplement and other documentation to
be delivered to the Agent as promptly as possible but in any event within thirty
(30) days of determination that a Subsidiary is a Material Subsidiary or
otherwise needs to be added as a Guarantor. Simultaneously with any Subsidiary
becoming a Guarantor, the Borrower shall (or, if the Capital Stock of such
Subsidiary is owned by another Subsidiary, shall cause such other Subsidiary to)
deliver to the Agent an executed supplement to the Pledge Agreement or a Pledge
Agreement, together with appropriate corporate resolutions, opinions, stock
certificates, UCC filings or amendments and other documentation, in each case in
form and substance reasonably satisfactory to the Agent and the Agent shall be
reasonably satisfied that it has a first priority perfected pledge of all of the
Capital Stock of such Guarantor owned by the Borrower and its Subsidiaries.
Simultaneously with the formation or acquisition of any Material Subsidiary
which is not a Domestic Subsidiary or at any time thereafter that such
non-Domestic Subsidiary is determined to be a Material Subsidiary, the Borrower
shall (or, if the Capital Stock of such Subsidiary is owned by another
Subsidiary, shall cause such other Subsidiary to) deliver to the Agent an
executed Pledge Agreement pursuant to which 65% of each class of the Capital
Stock of such Subsidiary is pledged to the Agent for the benefit of the Holders
of Secured Obligations, together with appropriate corporate resolutions,
opinions, including foreign counsel's opinion, stock certificates, UCC or other
required filings or amendments and other documentation, in each case in form and
substance reasonably satisfactory to the Agent and the Agent shall be reasonably
satisfied that it has a first priority perfected pledge of 65% of each class of
the Capital Stock of such Subsidiary or, if less, such percentage as is owned by
the Borrower and its Subsidiaries.
(L) ADDITIONAL SECURITY. The Borrower shall cause any Person becoming a
Subsidiary of the Borrower to deliver, within 30 days after its becoming a
Subsidiary, a supplement to the Security Agreement or a security agreement,
together with appropriate corporate resolutions,
56
opinions, UCC filings or amendments and other documentation, in each case in
form and substance reasonably satisfactory to the Agent and the Agent shall be
reasonably satisfied that it has a first priority perfected security interest in
the assets of such Subsidiary.
(M) INVENTORY IN LEASED LOCATIONS. The Borrower shall, and shall cause
each of its Subsidiaries to use reasonable commercial efforts to deliver to
Agent, within 90 days from the Effective Date, landlord lien waivers for all
inventory and equipment located in or on property leased by the Borrower and/or
its Subsidiaries in form and substance reasonably acceptable to Agent in its
sole discretion.
7.3 NEGATIVE COVENANTS.
(A) INDEBTEDNESS. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(i) The Obligations;
(ii) Permitted Existing Indebtedness and Permitted Refinancing
Indebtedness;
(iii) (A) the Indebtedness evidenced by the Senior Subordinated
Notes and (B) other unsecured subordinated indebtedness incurred by the
Borrower (including in connection with any Permitted Acquisition) that (x)
does not have a stated maturity before the Termination Date in effect as
of the date such indebtedness is incurred, (y) has terms that are no more
restrictive than the terms of this Agreement and the other Loan Documents,
and (z) is subordinated to the Obligations on terms at least as favorable
to the Lenders as the terms set forth on SCHEDULE 7.3 attached hereto,
with such changes thereto as may be agreed to by the Agent (such
Indebtedness under CLAUSES (A) and (B) being referred to herein
collectively as "PERMITTED SUBORDINATED INDEBTEDNESS");
(iv) Indebtedness in respect of obligations secured by Customary
Permitted Liens;
(v) Indebtedness constituting Contingent Obligations in respect of
Indebtedness otherwise permitted hereunder;
(vi) Indebtedness arising from intercompany loans from the Borrower
to any Controlled Subsidiary or from any Subsidiary to the Borrower or any
Controlled Subsidiary; PROVIDED that in each case such Indebtedness is
subordinated upon terms satisfactory to the Agent to the obligations of
the Borrower and its Subsidiaries with respect to the Obligations;
(vii) Guaranties by the Borrower of Indebtedness permitted to be
incurred by any Subsidiary;
(viii) Indebtedness in respect of Hedging Obligations permitted
under SECTION 7.3(Q);
57
(ix) Secured or unsecured purchase money Indebtedness (including
Capitalized Leases) incurred by the Borrower or any of its Subsidiaries
after the Original Closing Date (including, as a result of the assumption
of any such Indebtedness in connection with a Permitted Acquisition) to
finance the acquisition of fixed assets, if (A) at the time of such
incurrence, no Default or Unmatured Default has occurred and is continuing
or would result from such incurrence, (B) such Indebtedness has a
scheduled maturity and is not due on demand, (C) such Indebtedness does
not exceed the lower of the fair market value or the cost of the
applicable fixed assets on the date acquired, (D) such Indebtedness does
not exceed in the aggregate at any time an amount equal to the sum of (i)
$10,000,000 PLUS (b) an amount equal to 1.5% of consolidated revenues of
the Borrower and its Subsidiaries for each fiscal year, commencing with
the fiscal year ending December 31, 1997, (E any Lien securing such
Indebtedness is permitted under SECTION 7.3(c) and (F) such Indebtedness
is incurred in compliance with CLAUSE (XV) below (such Indebtedness being
referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(x) Indebtedness with respect to surety, appeal and performance
bonds obtained by the Borrower or any of its Subsidiaries in the ordinary
course of business;
(xi) Indebtedness arising under the Guaranty;
(xii) Indebtedness (including, without limitation, reimbursement
obligations in connection with letters of credit issued in connection
therewith) incurred by the Borrower or any of its Subsidiaries (or assumed
in connection with a Permitted Acquisition) consisting of tax-advantaged
industrial revenue bond, industrial development bond or other similar
financings; PROVIDED the aggregate amount of such Indebtedness shall not
at any time exceed $40,000,000;
(xiii)Indebtedness incurred in connection with the Receivables
Purchase Documents; PROVIDED the aggregate amount of such Indebtedness
shall not at any time exceed $100,000,000 and; PROVIDED FURTHER that in
any event the Borrower shall concurrently reduce the Revolving Credit
Obligations by an amount equal to the amount of such Indebtedness (which
reduction shall have no impact, however, on the Aggregate Commitment);
(xiv) Indebtedness incurred in connection with the Securitization
Facility or any new securitization facility in excess of that referred to
in SECTION 7.3(A) (XIII) immediately above; provided the aggregate amount
of such Indebtedness shall not at any time exceed $50,000,000 and;
provided further that in any event (A) the Borrower shall concurrently
reduce the Revolving Credit Obligations and the Aggregate Commitment by an
amount equal to the amount of such Indebtedness and (B) the Indebtedness
shall be approved by the Required Lenders;
(xv) Other Indebtedness (other than working capital financing)
existing at a New Subsidiary at the time of the Permitted Acquisition
thereof (but not incurred in connection or in anticipation of such
Permitted Acquisition) the outstanding principal balance of which does not
exceed ten percent (10%) of the book value of the assets
58
acquired as a result of such Permitted Acquisition and such Indebtedness
is incurred in compliance with the provisions of CLAUSE (XV) below; and
(xvi) Other Indebtedness in addition to that referred to elsewhere
in this SECTION 7.3(A) incurred by the Borrower provided that (A) the
aggregate amount of such other Indebtedness together with the aggregate
amount of Permitted Purchase Money Indebtedness and Indebtedness incurred
under CLAUSE (XV) above shall not at any time exceed $50,000,000; (B) the
aggregate amount of such other Indebtedness which is secured by a Lien
permitted under the terms of this Agreement together with the aggregate
amount of secured Permitted Purchase Money Indebtedness and secured
Indebtedness incurred under CLAUSE (XV) above shall not at any time exceed
$25,000,000; and (C) no Default or Unmatured Default shall have occurred
and be continuing at the date of such incurrence or would result
therefrom.
(B) SALES OF ASSETS. Neither the Borrower nor any of its Subsidiaries
shall sell, assign, transfer, lease, convey or otherwise dispose of any property
(including the stock of any Subsidiary), whether now owned or hereafter
acquired, or any income or profits therefrom, or enter into any agreement to do
so, except:
(i) Sales of inventory in the ordinary course of business;
(ii) The disposition in the ordinary course of business of equipment
that is obsolete, excess or no longer useful in the Borrower's or its
Subsidiaries' business;
(iii) Permitted Receivables Transfers; and
(iv) Sales, assignments, transfers, leases, conveyances or other
dispositions of other assets (including sales of stock of a Subsidiary) if
such transaction (A) is for consideration consisting of at least 80% of
cash, (B) is for not less than Fair Value, and (C) when combined with all
such other transactions (each such transaction being valued at book value)
(i) during the immediately preceding twelve-month period, represents the
disposition of not greater than two percent (2.0%) of the Borrower's
Consolidated Tangible Assets at the end of the fiscal year immediately
preceding that in which such transaction is proposed to be entered into,
and (ii) during the period from the Original Closing Date to the date of
such proposed transaction, represents the disposition of not greater than
twenty percent (20.0%) of the Borrower's Consolidated Tangible Assets at
the end of the fiscal year immediately preceding that in which such
transaction is proposed to be entered into;
provided that no agreements supplemental to this Agreement entered into for the
purpose of adding to or modifying this Subsection 7.3(b) or changing in any
manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder, shall be effective without the consent of Lenders whose Pro
Rata Shares, in the aggregate, are equal to or greater than eighty percent
(80%).
(C) LIENS. Neither the Borrower nor any of its Subsidiaries shall directly
or indirectly create, incur, assume or permit to exist any Lien on or with
respect to any of their respective property or assets except:
59
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) Purchase money Liens (including the interest of a lessor under
a Capitalized Lease and Liens to which any property is subject at the time
of the Borrower's acquisition thereof) securing Permitted Purchase Money
Indebtedness; provided that such Liens shall not apply to any property of
the Borrower or its Subsidiaries other than that purchased or subject to
such Capitalized Lease;
(iv) Liens securing Indebtedness assumed in connection with a
Permitted Acquisition and permitted pursuant to CLAUSE (XII) or CLAUSE
(XIII) of SECTION 7.3(A); provided that such Liens shall not apply to any
property of the Borrower or its Subsidiaries other than that purchased or
directly financed in connection with such Indebtedness;
(v) Liens securing the Obligations or Secured Obligations; and
(vi) Liens arising under the Receivables Purchase Documents; and
(vii) Liens (other than on the stock of any Subsidiaries) securing
other obligations not exceeding $25,000,000 in the aggregate at any time
outstanding.
In addition, neither the Borrower nor any of its Subsidiaries shall become
a party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Agent for the benefit of itself and Lenders, as
collateral for the Obligations; PROVIDED that any agreement, note, indenture or
other instrument in connection with Liens permitted pursuant to CLAUSES (I),
(III) and (iv) above may prohibit the creation of a Lien in favor of the Agent
for the benefit of itself and the Lenders on the items of property subject to
such Lien and; PROVIDED FURTHER that the Receivables Purchase Documents may
prohibit the creation of a Lien in favor of the Agent for the benefit of the
Holders of Secured Obligations on the assets of Metals Receivables Corporation
and on the Receivables Interests being sold or transferred by the Originators
pursuant to the Receivables Purchase Documents.
(D) INVESTMENTS. Except to the extent permitted pursuant to PARAGRAPH (G)
below, neither the Borrower nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
(i) Investments in Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater than
the amount thereof on the Original Closing Date;
(iii) Investments in trade receivables or received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
60
(iv) Investments consisting of deposit accounts maintained by the
Borrower or its Subsidiaries in the ordinary course of business in
connection with its cash management system;
(v) Investments consisting of non-cash consideration from a sale,
assignment, transfer, lease, conveyance or other disposition of property
permitted by SECTION 7.3(B);
(vi) Investments consisting of intercompany loans from any
Subsidiary to the Borrower or any other Subsidiary permitted by SECTION
7.3(A)(VI);
(vii) Investments in any Controlled Subsidiary of the Borrower;
(viii) Investments constituting Permitted Acquisitions;
(ix) Investments in Metals Receivables Corporation required in
connection with the Receivables Purchase Documents; and
(x) Investments in addition to those referred to elsewhere in this
SECTION 7.3(D) in an amount not to exceed $1,000,000 in the aggregate at
any time outstanding;
PROVIDED, HOWEVER, that the Investments described in CLAUSES (V), (viii)
and (X) above shall not be permitted if either a Default or Unmatured Default
shall have occurred and be continuing on the date thereof or would result
therefrom.
(E) NON-GUARANTOR SUBSIDIARIES OR NON-PLEDGED SUBSIDIARIES. The Borrower
shall not permit the total assets of the Subsidiaries which are not Guarantors
or the Capital Stock of which is not pledged (excluding therefrom all items that
are treated as intangibles under Agreement Accounting Principles) to be equal to
or greater than ten percent (10%) of Consolidated Tangible Assets. For purposes
of this SECTION 7.3(E),with respect to non-Domestic Subsidiaries where only 65%
of the Capital Stock is pledged, thirty five percent (35%) of such Subsidiaries'
Consolidated Tangible Assets shall be included in the calculation of the ten
percent (10%) amount set forth above.
(F) RESTRICTED PAYMENTS. Neither the Borrower nor any of its Subsidiaries
shall declare or make any Restricted Payment, except:
(i) the defeasance, redemption, repurchase or prepayment of any
Permitted Subordinated Indebtedness (other than the Senior Subordinated
Notes) with the net cash proceeds of Permitted Refinancing Indebtedness;
(ii) the defeasance, redemption, repurchase or prepayment of any
Permitted Subordinated Indebtedness (other than the Senior Subordinated
Notes) PROVIDED the aggregate amount so defeased, redeemed, repurchased or
prepaid after the Original Closing Date shall not exceed an amount equal
to ten percent (10%) of the Aggregate Commitment;
61
(iii) where the consideration therefor consists solely of Equity
Interests (but excluding Disqualified Stock) of the Borrower or its
Subsidiaries provided no Change of Control would occur as a result
thereof; and
(iv) cash dividends or distributions on the Capital Stock of the
Borrower PROVIDED (A) for the fiscal quarter ending December 31, 2000, the
amount of such dividends shall not exceed $1,100,000; (B) for each fiscal
quarter thereafter, in the event the quarterly Base EBITDA exceeds
$35,000,000 during subsequent quarters, the amount of the dividend for
such quarter shall not exceed $1,100,000; and (C) the aggregate amount of
such dividends shall not exceed $4,500,000 in any twelve (12) month
period; and
PROVIDED, HOWEVER, that the Restricted Payments described in clauses (i), (ii),
(iii), (iv) and (v) above shall not be permitted if either a Default shall have
occurred and be continuing at the date of declaration or payment thereof or
would result therefrom.
(G) CONDUCT OF BUSINESS; SUBSIDIARIES; ACQUISITIONS.
(I) LINES OF BUSINESS. Neither the Borrower nor any of its
Subsidiaries shall engage in any business other than the businesses
engaged in by the Borrower on the Original Closing Date and any business
or activities which are substantially similar, related or incidental
thereto.
(II) DOMESTIC AND FOREIGN SUBSIDIARIES.
(A) DOMESTIC SUBSIDIARIES. The Borrower may create, acquire
and/or capitalize any Subsidiary (a "NEW SUBSIDIARY") after the date
hereof pursuant to any transaction that is permitted by or not
otherwise prohibited by this Agreement; provided that upon the
creation or acquisition of each New Subsidiary, the Borrower shall
cause each New Subsidiary that is both a Domestic Subsidiary and a
Material Subsidiary to promptly deliver to the Agent an executed
counterpart of a Guaranty Supplement to become a Guarantor under the
Guaranty in the form of EXHIBIT J attached hereto and appropriate
corporate resolutions, opinions and other documentation in form and
substance satisfactory to the Agent, and all New Subsidiaries that
are Material Subsidiaries shall be Controlled Subsidiaries.
(B) FOREIGN SUBSIDIARIES. The Borrower shall deliver an
agreement evidencing the pledge, to the Agent, for the benefit of
the Holders of Secured Obligations of 65% of the Capital Stock of
each Material Subsidiary that is not a Domestic Subsidiary, within
sixty (60) days after such Subsidiary has become a Material
Subsidiary, together, in each such case, with corporate resolutions,
opinions of counsel, stock certificates, stock powers and such other
corporate documentation as the Agent may reasonably request, all in
form and substance reasonably satisfactory to the Agent; PROVIDED,
HOWEVER, in the event that any such Material Foreign Subsidiary is
wholly-owned by a Domestic Subsidiary, in connection with which all
of the requirements of this CLAUSE (II) have been
62
satisfied and the activities of which are limited to owning the
Capital Stock of its Subsidiaries, then, the Agent, at its option,
may waive the requirement for the pledge of such foreign Material
Subsidiary's Capital Stock under this CLAUSE (II); and PROVIDED
FURTHER, HOWEVER, in the event that more than one Subsidiary within
a commonly controlled group of Subsidiaries constitutes a Material
Subsidiary which is not a Domestic Subsidiary, then only the Capital
Stock of the "parent" or "controlling" Subsidiary shall be required
to be pledged. If at any time any non-Domestic Material Subsidiary
shall issue or cause to be issued Capital Stock, or warrants or
options with respect to its Capital Stock, such that the aggregate
amount of the Capital Stock, if any, of such Material Foreign
Subsidiary pledged to the Agent for the benefit of the Holders of
Secured Obligations is less than 65% of all of the outstanding
Capital Stock thereof, the Borrower shall (i) promptly notify the
Agent of such deficiency and (ii) deliver or cause to be delivered
any agreements, instruments, certificates and other documents as the
Agent may reasonably request all in a form and substance reasonably
satisfactory to the Agent in order to cause all of the Capital Stock
of such non-Domestic Material Subsidiary (but not in excess of 65%
of all of the outstanding Capital Stock thereof) to be pledged to
the Agent for the benefit of the Holders of Secured Obligations. In
the event that the Borrower or any Guarantor causes or permits any
foreign Material Subsidiary that is not a Guarantor to, directly or
indirectly, guarantee the payment of any Indebtedness of the
Borrower or any Guarantor then the Borrower will (i) simultaneously
deliver, or cause to be delivered, an agreement evidencing the
pledge, to the Agent, for the benefit of the Holders of Secured
Obligations, of all of the Capital Stock of such non-Domestic
Material Subsidiary, (ii) simultaneously cause such non-Domestic
Material Subsidiary to execute and deliver to the Agent a Guaranty
Supplement pursuant to which it agrees to be bound by the terms and
provisions of the Subsidiary Guaranty (whereupon such Subsidiary
shall become a "Guarantor" under this Agreement), and (iii) deliver
and cause such Subsidiaries to deliver corporate resolutions,
opinions of counsel, stock certificates, stock powers, UCC financing
statements with respect to the Capital Stock added as additional
Collateral and such other corporate documentation as the Agent may
reasonably request, all in form and substance reasonably
satisfactory to the Agent.
(III) ACQUISITIONS. The Borrower shall not make any Acquisitions,
other than Acquisitions meeting the following requirements (each such
Acquisition constituting a "PERMITTED ACQUISITION"):
(A) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence
of any Indebtedness in connection therewith;
(B) in the case of an Acquisition of Equity Interests of an
entity, such Acquisition shall be of at least ninety percent (90%)
of the Equity Interests of such entity;
63
(C) the businesses being acquired shall be substantially
similar, related or incidental to the businesses or activities
engaged in by the Borrower and its Subsidiaries on the Original
Date;
(D) the Indebtedness incurred by the Borrower to the Seller as
part of the consideration therefor (other than Indebtedness assumed
in connection therewith and permitted pursuant to CLAUSES (IX),
(xii) or (XIII) of SECTION 7.3(A)) shall be Permitted Subordinated
Indebtedness under Section 7.3(A);
(E) prior to each such Acquisition, the Borrower shall deliver
to the Agent and the Lenders a certificate from one of the
Authorized Officers, (1) calculating the purchase price and EBITDA
for purposes of clause (h) below; and (2) certifying that after
giving effect to such Acquisition and the incurrence of any
Indebtedness hereunder and permitted by Section 7.3(A) in connection
therewith, on a pro forma basis, as if the Acquisition and such
incurrence of Indebtedness had occurred on the first day of the
twelve-month period ending on the last day of the Borrower's most
recently completed fiscal quarter, the Borrower would have been in
compliance with all of the covenants contained in this Agreement,
including, without limitation, the financial covenants set forth in
Section 7.4;
(F) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis;
(G) after giving effect to such Acquisition, the
representations and warranties set forth in ARTICLE VI hereof shall
be true and correct in all material respects on and as of the date
of such Acquisition with the same effect as though made on and as of
such date; and
(H) the written consent of the Required Lenders shall have
been obtained in connection with any Acquisition if the aggregate
purchase price (including, without limitation or duplication, cash,
stock, Indebtedness assumed (net of any cash acquired) and
transaction related contractual payments, including amounts payable
under non-compete, consulting or similar agreements (valuing all
non-cash consideration at Fair Value)) (the "PURCHASE PRICE") is
equal to or greater than $3,000,000;
PROVIDED the aggregate Purchase Price of all Acquisitions shall not exceed
$30,000,000 during the term hereof.
With respect to any Acquisition where the target entity's assets are equal to or
greater than five percent (5.0%) of the Borrower's and its Subsidiaries'
consolidated assets, the Borrower shall (i) have obtained (and shall have based
the calculations set forth above on) historical audited financial statements for
the target and/or reviewed unaudited financial statements for the target for a
period of not less than two years, obtained from the seller or provided by
independent certified public accountants retained for the purposes of such
Acquisition, broken down by fiscal quarter in the Borrower's reasonable
judgment, copies of which shall be provided to the Agent and the Lenders and
(ii) at the request of the Required Lenders (such request not to be made
64
more frequently than once in any fiscal quarter) provide such financial
information as shall be reasonably acceptable to the Agent and the Required
Lenders demonstrating the Borrower's pro forma compliance with the covenants
after taking into account such Acquisition and the incurrence of any
Indebtedness in connection therewith.
(H) TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder or
holders of any of the Equity Interests of the Borrower, or with any Affiliate of
the Borrower which is not its Subsidiary, on terms that are less favorable to
the Borrower or any of its Subsidiaries, as applicable, than those that might be
obtained in an arm's length transaction at the time from Persons who are not
such a holder or Affiliate, except for (i) Permitted Receivables Transfers and
(ii) Restricted Payments permitted by SECTION 7.3(F).
(I) RESTRICTION ON FUNDAMENTAL CHANGES. Neither the Borrower nor any of
its Subsidiaries shall enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of the Borrower's or any such
Subsidiary's business or property, whether now or hereafter acquired, except (i)
transactions permitted under SECTIONS 7.3(B) or 7.3(G) (II) the merger of a
Subsidiary of the Borrower into a Person acquired in connection with a Permitted
Acquisition; and (iii) the merger of a wholly-owned Subsidiary of the Borrower
with and into the Borrower; PROVIDED, HOWEVER, (A) with respect to any such
permitted mergers involving any Guarantor, the surviving corporation in the
merger shall also be or become a Guarantor; and (B) after the consummation of
any such transaction, the Borrower shall be in compliance with the provisions of
SECTIONS 7.2(K) and 7.3(E).
(J) SALES AND LEASEBACKS. Other than the lease transactions in effect on
the Effective Date, neither the Borrower nor any of its Subsidiaries shall
become liable, directly, by assumption or by Contingent Obligation, with respect
to any lease, whether an operating lease or a Capitalized Lease, of any property
(whether real or personal or mixed) (i) which it or one of its Subsidiaries sold
or transferred or is to sell or transfer to any other Person, or (ii) which it
or one of its Subsidiaries intends to use for substantially the same purposes as
any other property which has been or is to be sold or transferred by it or one
of its Subsidiaries to any other Person in connection with such lease, unless
(A) the sale involved is not prohibited under SECTION 7.3(B), (B) the lease does
not involve Indebtedness prohibited under SECTION 7.3(A), (C) the aggregate
amount of the obligations incurred by the Borrower and its Subsidiaries after
the Effective Date in connection with each sale-leaseback transaction does not
exceed $5,000,000, (D) all proceeds from sale-leaseback transactions shall be
applied to the principal of all outstanding Loans and (E) in the event that the
aggregate amount of proceeds from sale-leaseback transactions exceeds
$25,000,000, the Aggregate Commitment shall be reduced by an amount equal to the
aggregate proceeds from the sale-leaseback transactions in excess of
$25,000,000; provided, however, that the Borrower's Subsidiary, Metals USA
Carbon Flat Rolled, Inc., may become liable with respect to the proposed
sale-leaseback transaction with United Trust Fund Limited Partnership involving
the real property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, upon the
terms previously disclosed to the Agent including a purchase price of
approximately $5,600,000, and provided further that such $5,600,000
sale-leaseback transaction complies with SUBSECTION
65
7.3(J)(A), (B) and (D) above and shall reduce the aggregate proceeds available
under SUBSECTION 7.3(J)(E) above.
(K) MARGIN REGULATIONS. Neither the Borrower nor any of its Subsidiaries,
shall use all or any portion of the proceeds of any credit extended under this
Agreement to purchase or carry Margin Stock.
(L) ERISA. The Borrower shall not
(i) engage, or permit any of its Subsidiaries to engage, in any
prohibited transaction described in Sections 406 of ERISA or 4975 of the
Code for which a statutory or class exemption is not available or a
private exemption has not been previously obtained from the DOL;
(ii) permit to exist any accumulated funding deficiency (as defined
in Sections 302 of ERISA and 412 of the Code), with respect to any Benefit
Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to pay
timely required contributions or annual installments due with respect to
any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to terminate,
any Benefit Plan which would result in any liability of the Borrower or
any Controlled Group member under Title IV of ERISA;
(v) fail to make any contribution or payment to any Multiemployer
Plan which the Borrower or any Controlled Group member may be required to
make under any agreement relating to such Multiemployer Plan, or any law
pertaining thereto;
(vi) fail, or permit any Controlled Group member to fail, to pay any
required installment or any other payment required under Section 412 of
the Code on or before the due date for such installment or other payment;
or
(vii) amend, or permit any Controlled Group member to amend, a Plan
resulting in an increase in current liability for the plan year such that
the Borrower or any Controlled Group member is required to provide
security to such Plan under Section 401(a)(29) of the Code,
except where such transactions, events, circumstances, or failures will not have
or is not reasonably likely to subject the Borrower and its Subsidiaries to
liability individually or in the aggregate in excess of $10,000,000.
(M) ISSUANCE OF EQUITY INTERESTS. The Borrower shall not issue any Equity
Interests if as a result of such issuance a Change of Control shall occur. None
of the Borrower's Subsidiaries shall issue any Equity Interests other than to
the Borrower.
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(N) CORPORATE DOCUMENTS. Neither the Borrower nor any of its Subsidiaries
shall amend, modify or otherwise change any of the terms or provisions in any of
their respective constituent documents as in effect on the Effective Date hereof
in any manner adverse in any material respect to the interests of the Lenders,
without the prior written consent of the Required Lenders.
(O) FISCAL YEAR. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
(P) SUBSIDIARY COVENANTS. Except to the extent required in the Receivables
Transfer Documents, the Borrower will not, and will not permit any Subsidiary
to, create or otherwise cause to become effective any consensual encumbrance or
restriction of any kind on the ability of any Subsidiary to pay dividends or
make any other distribution on its stock, or make any other Restricted Payment,
pay any Indebtedness or other Obligation owed to the Borrower or any other
Subsidiary, make loans or advances or other Investments in the Borrower or any
other Subsidiary, or sell, transfer or otherwise convey any of its property to
the Borrower or any other Subsidiary.
(Q) HEDGING OBLIGATIONS. The Borrower shall not and shall not permit any
of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Borrower or a
Subsidiary pursuant to which the Borrower or such Subsidiary has hedged its
actual interest rate, foreign currency or commodity exposure.
(R) OTHER INDEBTEDNESS. The Borrower shall not amend, modify or
supplement, or permit any Subsidiary to amend, modify or supplement (or consent
to any amendment, modification or supplement of), the Senior Subordinated Notes,
the Indenture or any other document, agreement or instrument evidencing the
Senior Subordinated Notes (or any replacements, substitutions or renewals
thereof) or pursuant to which the Senior Subordinated Notes are issued, or make
any payment required as a result of such an amendment, modification or
supplement, where such amendment, modification or supplement provides for the
following or which has any of the following effects:
(i) increases the overall principal amount of the Senior
Subordinated Notes or increases the amount of any single scheduled
installment of principal or interest;
(ii) shortens or accelerates the date upon which any installment of
principal or interest becomes due or adds any additional mandatory
redemption provisions;
(iii) shortens the final maturity date of the Senior Subordinated
Notes or otherwise accelerates the amortization schedule with respect
thereto;
(iv) increases the rate of interest accruing on the Senior
Subordinated Notes;
(v) provides for the payment of additional fees or increases
existing fees;
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(vi) amends or modifies any financial or negative covenant (or
covenant which prohibits or restricts the Borrower or a Subsidiary of the
Borrower from taking certain actions) in a manner which is more onerous or
more restrictive to the Borrower (or any Subsidiary of the Borrower) or
which is otherwise materially adverse to the Borrower and/or the Lenders
or, in the case of adding covenants, which places additional restrictions
on the Borrower (or a Subsidiary of the Borrower) or which requires the
Borrower or any such Subsidiary to comply with more restrictive financial
ratios or which requires the Borrower to better its financial performance
from that set forth in the existing financial covenants; or
(vii) amends, modifies or adds any affirmative covenant in a manner
which, when taken as a whole, is materially adverse to the Borrower and/or
the Lenders.
(S) AMENDMENT OF RECEIVABLES PURCHASE DOCUMENTS. The Borrower shall not,
and shall not permit any of its Subsidiaries to, agree to or enter into any
amendment, restatement or other modification of the Receivables Purchase
Documents, or substitute or replace the Receivables Purchase Documents with
another receivables securitization facility, that would (i) increase the maximum
principal amount of Indebtedness to be incurred thereunder to an amount in
excess of $100,000,000 other than in compliance with SECTION 7.3(A) (XIV); (ii)
accelerate any scheduled amortization date; (iii) increase the recourse
obligations of the Borrower or any of its Subsidiaries (other than Metals
Receivables Corporation) in any material respect; (iv) impose net worth
covenants for Metals Receivables Corporation that are materially more stringent
than those originally contained in the Receivables Purchase Documents or
materially more stringent than in comparable structured finance transactions;
(v) materially decrease the cash consideration to be paid to any Originator on
account of any Permitted Receivables Transfers; or (vi) materially increase the
amount of discount, yield or interest payable thereunder.
7.4 FINANCIAL COVENANTS. The Borrower shall comply with the following:
(A) FIXED CHARGE COVERAGE RATIO. The Borrower shall maintain a ratio
("FIXED CHARGE COVERAGE RATIO") of (i) the sum of (A) Base EBITDA, minus (B)
Restricted Payments made pursuant to Section 7.3(f)(v) to (ii) Interest Expense
in each case for the Borrower and its consolidated Subsidiaries of at least:
2.35 to 1.00 for the fiscal quarter ending September 30, 2000;
2.00 to 1.00 for the fiscal quarter ending December 31, 2000;
1.80 to 1.00 for each fiscal quarter commencing with the fiscal quarter
ending March 31, 2001 through the fiscal quarter ending June 30, 2001;
1.95 to 1.00 for the fiscal quarter ending September 30, 2001;
2.10 to 1.00 for the fiscal quarter ending December 31, 2001; and
2.20 to 1.00 for each fiscal quarter thereafter.
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In each case the Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter for the four-quarter period ending on such day. For
purposes of the calculation of Interest Expense, such amount shall be calculated
for any such period by including only the actual amount for the applicable
period ending on such day.
(B) TOTAL DEBT TO EBITDA RATIO. The Borrower shall not at any time permit
the ratio (the "LEVERAGE RATIO") of (i) Total Debt of the Borrower and its
consolidated Subsidiaries to (ii) EBITDA of the Borrower and its consolidated
Subsidiaries, to be greater than:
5.15 to 1.00 for the fiscal quarter ending September 30, 2000;
5.20 to 1.00 for the fiscal quarter ending December 31, 2000;
5.75 to 1.00 for the fiscal quarter ending March 31, 2001;
5.90 to 1.00 for the fiscal quarter ending June 30, 2001;
5.20 to 1.00 for the fiscal quarter ending September 30, 2001;
4.80 to 1.00 for the fiscal quarter ending December 31, 2001; and
4.50 to 1.00 for each fiscal quarter thereafter.
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter based upon (i) for Total Debt, Total Debt as of the
last day of each such fiscal quarter; and (ii) for EBITDA, EBITDA for the
twelve-month period ending on such day, calculated as set forth in the
definition thereof.
(C) MINIMUM CONSOLIDATED NET WORTH. The Borrower shall not permit its
Consolidated Net Worth at any time to be less than the sum of (i) $325,000,000
PLUS (ii) fifty percent (50%) of Net Income (if positive) calculated separately
for each fiscal quarter ending after September 30, 2000, PLUS (iii) seventy-five
percent (75%) of the adjustment to stockholder's equity made in connection with
the issuance of any Capital Stock.
(D) SENIOR DEBT TO EBITDA RATIO. The Borrower shall not at any time permit
the ratio of (i) Total Debt of the Borrower and its Consolidated Subsidiaries
minus Permitted Subordinated Indebtedness of the Borrower to (ii) EBITDA of the
Borrower and its Consolidated Subsidiaries, to be greater than:
3.50 to 1.00 for each fiscal quarter commencing with the fiscal quarter
ending September 30, 2000 through the fiscal quarter ending December 31,
2000;
3.60 to 1.00 for the fiscal quarter ending March 31, 2001;
3.70 to 1.00 for the fiscal quarter ending June 30, 2001;
3.20 to 1.00 for the fiscal quarter ending September 30, 2001; and
3.00 to 1.00 for each fiscal quarter thereafter.
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Such ratio shall be calculated, in each case, determined as of the last day of
each fiscal quarter based upon (i) for Total Debt and Permitted Subordinated
Indebtedness, Total Debt and Permitted Subordinated Indebtedness as of the last
day of each such fiscal quarter; and (ii) for EBITDA, EBITDA for the
twelve-month period ending on such day, calculated as set forth in the
definition thereof.
(E) QUARTERLY BASE EBITDA. The Borrower shall not permit its Base EBITDA
at any time to be less than (i) $18,500,000 for each fiscal quarter commencing
with the fiscal quarter ending September 30, 2000 through the fiscal quarter
ending December 31, 2000; (ii) $23,000,000 for the fiscal quarter ending March
31, 2001; (iii) $27,000,000 for the fiscal quarter ending June 30, 2001; (iv)
$24,000,000 for the fiscal quarter ending September 30, 2001; (v) $22,500,000
for the fiscal quarter ending December 31, 2001; and (vi) $25,000,000 for each
fiscal quarter thereafter.
(F) CAPITAL EXPENDITURES. The Borrower will not, nor will it permit any
Subsidiary to, expend, or be committed to expend, for Capital Expenditures in
the acquisition of fixed assets, during any fiscal year, beginning with fiscal
year 2001, on a non-cumulative basis except as provided herein, in the aggregate
for the Borrower and its Subsidiaries, in excess of $30,000,000.
ARTICLE 8
DEFAULTS
8.1 DEFAULTS. Each of the following occurrences shall constitute a Default
under this Agreement:
(A) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower shall (i) fail to pay
when due any of the Obligations consisting of principal with respect to the
Loans or (ii) shall fail to pay within three (3) Business Days of the date when
due any of the other Obligations under this Agreement or the other Loan
Documents.
(B) BREACH OF CERTAIN COVENANTS. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on the Borrower under:
(I) SECTION 7.1(I) or 7.2(B) and such failure shall continue
unremedied for fifteen (15) days;
(II) SECTIONS 7.1(A), 7.2(C), 7.2(D), 7.2(E), 7.2(G) and including
7.2(I) and such failure shall continue unremedied for five (5) Business
Days; or
(iii) Sections 7.1(B), 7.2(A), 7.2(F), 7.2(J), 7.3 or 7.4.
(C) BREACH OF REPRESENTATION OR WARRANTY. Any representation or warranty
made or deemed made by the Borrower to the Agent or any Lender herein or by the
Borrower or any of its Subsidiaries in any of the other Loan Documents or in any
written statement or certificate at any time given by any such Person pursuant
to any of the Loan Documents shall be false or misleading in any material
respect on the date as of which made (or deemed made).
70
(D) OTHER DEFAULTS. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered by
PARAGRAPHS (A), (B) or (C) of this SECTION 8.1), or the Borrower or any of its
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for thirty (30) days after the occurrence thereof.
(E) DEFAULT AS TO OTHER INDEBTEDNESS. The Borrower or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) with respect
to the Senior Subordinated Notes or any other Indebtedness the outstanding
principal amount of which Indebtedness is in excess of $10,000,000; or any
breach, default or event of default shall occur, or any other condition shall
exist under any instrument, agreement, the Indenture or any other indenture
pertaining to any such Indebtedness, if the effect thereof is to cause an
acceleration, mandatory redemption, a requirement that the Borrower offer to
purchase such Indebtedness or other required repurchase of such Indebtedness, or
permit the holder(s) of such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such Indebtedness;
or any such Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by the Borrower or any of its Subsidiaries (other than by a
regularly scheduled required prepayment) prior to the stated maturity thereof.
(F) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An INVOLUNTARY case shall be commenced against the Borrower or
any of the Borrower's Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Borrower or any
of the Borrower's Subsidiaries in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter
in effect; or any other similar relief shall be granted under any
applicable federal, state, local or foreign law.
(ii) A DECREE or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Borrower or any of the Borrower's Subsidiaries or over all or a
substantial part of the property of the Borrower or any of the Borrower's
Subsidiaries shall be entered; or an interim receiver, trustee or other
custodian of the Borrower or any of the Borrower's Subsidiaries or of all
or a substantial part of the property of the Borrower or any of the
Borrower's Subsidiaries shall be appointed or a warrant of attachment,
execution or similar process against any substantial part of the property
of the Borrower or any of the Borrower's Subsidiaries shall be issued and
any such event shall not be stayed, dismissed, bonded or discharged within
sixty (60) days after entry, appointment or issuance.
(G) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The Borrower or
any of the Borrower's Subsidiaries shall (i) commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consent to the entry of
71
an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, (iii) consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property, (iv) make any assignment for the
benefit of creditors or (v) take any corporate action to authorize any of the
foregoing.
(H) JUDGMENTS AND ATTACHMENTS. Any money judgment(s), writ or warrant of
attachment, or similar process against the Borrower or any of its Subsidiaries
or any of their respective assets involving in any single case or in the
aggregate an amount in excess of $5,000,000 is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or
in any event later than fifteen (15) days prior to the date of any proposed sale
thereunder.
(I) DISSOLUTION. Any order, judgment or decree shall be entered against
the Borrower or any of its Subsidiaries decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of sixty (60) days; or the Borrower or any of its Subsidiaries shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement.
(J) LOAN DOCUMENTS; FAILURE OF SECURITY. At any time, for any reason, (i)
any Loan Document as a whole that materially affects the ability of the Agent,
or any of the Lenders to enforce the Obligations or enforce their rights against
the Collateral ceases to be in full force and effect or the Borrower or any of
the Borrower's Subsidiaries party thereto seeks to repudiate its obligations
thereunder or the Liens intended to be created thereby are, or the Borrower or
any such Subsidiary seeks to render such Liens, invalid or unperfected, or (ii)
any Lien on the Capital Stock of any Material Subsidiary shall, at any time, for
any reason, be invalidated or otherwise cease to be in full force and effect, or
such Lien shall not have the priority contemplated by this Agreement or the Loan
Documents.
(K) TERMINATION EVENT. Any Termination Event occurs which is reasonably
likely to subject the Borrower or any of its Subsidiaries to liability
individually or in the aggregate in excess of $10,000,000.
(L) WAIVER OF MINIMUM FUNDING STANDARD. If the plan administrator of any
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Borrower or any Controlled
Group member to liability individually or in the aggregate in excess of
$1,000,000.
(M) CHANGE OF CONTROL. A Change of Control shall occur.
(N) HEDGING AGREEMENTS. Nonpayment by the Borrower or any Subsidiary of
any obligation under any contract with respect to Hedging Obligations entered
into by the Borrower or such Subsidiary with any Lender (or Affiliate thereof)
or the breach by the Borrower or Subsidiary of any other term, provision or
condition contained in any agreement and such nonpayment or breach shall
continue for ten (10) days after the occurrence thereof.
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(O) GUARANTOR DEFAULT OR REVOCATION. Any Guaranty shall fail to remain in
full force or effect or any action shall be taken by the Borrower or any
Subsidiary to discontinue or to assert the invalidity or unenforceability of any
Guaranty, or any Guarantor shall fail to comply with any of the terms or
provisions of any Guaranty to which it is a party, or any Guarantor denies that
it has any further liability under any Guaranty to which it is a party, or gives
notice to such effect.
(P) FAILURE OF SUBORDINATION. The subordination provisions of the
documents and instruments evidencing the Senior Subordinated Notes or any other
Permitted Subordinated Indebtedness in an individual or aggregate principal
amount outstanding in excess of $10,000,000 shall, at any time, be invalidated
or otherwise cease to be in full force and effect.
(Q) DEFAULT AS TO SECURITIZATION FACILITY. The occurrence of any event
that would allow the holders of the indebtedness evidenced by the Securitization
Facility to accelerate the indebtedness evidenced thereby.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with SECTION 9.3.
ARTICLE 9
ACCELERATION, DEFAULTING LENDERS;
WAIVERS, AMENDMENTS AND REMEDIES
9.1 TERMINATION OF COMMITMENTS; ACCELERATION. If any Default described in
SECTION 8.1(F) or 8.1(G) occurs with respect to the Borrower, the obligations of
the Lenders to make Loans hereunder and the obligation of the Agent to issue
Letters of Credit hereunder shall automatically terminate and the Obligations
shall immediately become due and payable without any election or action on the
part of the Agent or any Lender. If any other Default occurs, the Required
Lenders may terminate or suspend the obligations of the Lenders to make Loans
hereunder and the obligation of the Issuing Banks to issue Letters of Credit
hereunder, or declare the Obligations to be due and payable, or both, whereupon,
after written notice to the Borrower, the Obligations shall become immediately
due and payable, without presentment, demand, protest or other notice of any
kind, all of which the Borrower expressly waives.
9.2 DEFAULTING LENDER. In the event that any Lender fails to fund its Pro
Rata Share of any Advance requested or deemed requested by the Borrower, which
such Lender is obligated to fund under the terms of this Agreement (the funded
portion of such Advance being hereinafter referred to as a "NON PRO RATA LOAN"),
until the earlier of such Lender's cure of such failure and the termination of
the Commitments, the proceeds of all amounts thereafter repaid to the Agent by
the Borrower and otherwise required to be applied to such Lender's share of all
other Obligations pursuant to the terms of this Agreement shall be advanced to
the Borrower by the Agent on behalf of such Lender to cure, in full or in part,
such failure by such Lender, but shall nevertheless be deemed to have been paid
to such Lender in satisfaction of such other Obligations. Notwithstanding
anything in this Agreement to the contrary:
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(i) the foregoing provisions of this SECTION 9.2 shall apply only
with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to SECTION 2.8;
(ii) any such Lender shall be deemed to have cured its failure to
fund its Pro Rata Share of any Advance at such time as an amount equal to
such Lender's original Pro Rata Share of the requested principal portion
of such Advance is fully funded to the Borrower, whether made by such
Lender itself or by operation of the terms of this SECTION 9.2, and
whether or not the Non Pro Rata Loan with respect thereto has been repaid,
converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or in part,
any such Lender's failure to fund its Pro Rata Share of any Advance ("CURE
Loans") shall bear interest at the rate applicable to Floating Rate Loans
in effect from time to time, and for all other purposes of this Agreement
shall be treated as if they were Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or is
continuing, and notwithstanding the instructions of the Borrower as to its
desired application, all repayments of principal which, in accordance with
the other terms of this Agreement, would be applied to the outstanding
Floating Rate Loans shall be applied FIRST, ratably to all Floating Rate
Loans constituting Non Pro Rata Loans, SECOND, ratably to Floating Rate
Loans other than those constituting Non Pro Rata Loans or Cure Loans and,
THIRD, ratably to Floating Rate Loans constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's cure
of the failure to fund its Pro Rata Share of any Advance and the
termination of the Commitments, the term "Required Lenders" for purposes
of this Agreement shall mean Lenders (excluding all Lenders whose failure
to fund their respective Pro Rata Shares of such Advance have not been so
cured) whose Pro Rata Shares represent at least fifty-one percent (51%) of
the aggregate Pro Rata Shares of such Lenders; and
(vi) for so long as and until any such Lender's failure to fund its
Pro Rata Share of any Advance is cured in accordance with SECTION 9.2(II),
(A) such Lender shall not be entitled to any commitment fees with respect
to its Commitment and (B) such Lender shall not be entitled to any letter
of credit fees, which commitment fees and letter of credit fees shall
accrue in favor of the Lenders which have funded their respective Pro Rata
Share of such requested Advance, shall be allocated among such performing
Lenders ratably based upon their relative Commitments, and shall be
calculated based upon the average amount by which the aggregate
Commitments of such performing Lenders exceeds the sum of (I) the
outstanding principal amount of the Loans owing to such performing
Lenders, PLUS (II) the outstanding Reimbursement Obligations owing to such
performing Lenders, PLUS (III) the aggregate participation interests of
such performing Lenders arising pursuant to SECTION 3.5 with respect to
undrawn and outstanding Letters of Credit.
9.3 AMENDMENTS. Subject to the provisions of this ARTICLE IX, the Required
Lenders (or the Agent with the consent in writing of the Required Lenders) and
the Borrower may enter
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into agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder or waiving any Default hereunder; PROVIDED,
HOWEVER, that no such supplemental agreement shall, without the consent of
Lenders whose Pro Rata Shares, in the aggregate, are equal to or greater than
sixty-six and two-thirds percent (66-2/3%) permit the ratio of (i) Total Debt of
the Borrower and its Consolidated Subsidiaries MINUS Permitted Subordinated
Indebtedness of the Borrower to (ii) EBITDA of the Borrower and its Consolidated
Subsidiaries, to be greater than 3.25 to 1.00; PROVIDED, FURTHER, HOWEVER, that
no such supplemental agreement shall, without the consent of each Lender
affected thereby:
(i) Postpone or extend the Termination Date or any other date fixed
for any payment of principal of, or interest on, the Loans, the
Reimbursement Obligations or any fees or other amounts payable to such
Lender (except with respect to (A) any modifications of the provisions
relating to prepayments of Loans and other Obligations and (B) a waiver of
the application of the default rate of interest pursuant to Section 2.9
hereof);
(ii) Reduce the principal amount of any Loans or L/C Obligations, or
reduce the rate or extend the time of payment of interest or fees thereon;
(iii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be the applicable
percentage in this Agreement to act on specified matters;
(iv) Increase the amount of the Commitment of any Lender hereunder;
(v) Permit the Borrower to assign its rights under this Agreement;
(vi) Amend this SECTION 9.3;
(vii) Other than in connection with a transaction permitted under
the terms of the Agreement release any guarantor of the Obligations;
(viii) Other than in connection with a transaction permitted under
the terms of the Agreement, release all or substantially all of the
Collateral; or
(ix) Amend the terms of SECTION 12.2.
No amendment of any provision of this Agreement relating to (i) the Agent
shall be effective without the written consent of the Agent, (ii) Swing Line
Loans shall be effective without the written consent of the Swing Line Bank and
(iii) Letters of Credit shall be effective without the written consent of the
Issuing Banks. The Agent may waive payment of the fee required under SECTION
13.3(B) without obtaining the consent of any of the Lenders.
9.4 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan or the issuance of a Letter of Credit notwithstanding the
existence of a Default or the inability of the Borrower to
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satisfy the conditions precedent to such Loan or issuance of such Letter of
Credit shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to SECTION 9.3,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent and the Lenders until the Obligations have been
paid in full.
ARTICLE 10
GENERAL PROVISIONS
10.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Notes and
the making of the Loans herein contemplated.
10.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 PERFORMANCE OF OBLIGATIONS. The Borrower agrees that the Agent may,
but shall have no obligation to (i) at any time, pay or discharge taxes, liens,
security interests or other encumbrances levied or placed on or threatened
against any Collateral and (ii) after the occurrence and during the continuance
of a Default, make any other payment or perform any act required of the Borrower
under any Loan Document or take any other action which the Agent in its
discretion deems necessary or desirable to protect or preserve the Collateral or
enhance the likelihood of repayment of the Obligations. The Agent shall use its
reasonable efforts to give the Borrower and the Lenders notice of any action
taken under this SECTION 10.3 prior to the taking of such action or promptly
thereafter provided the failure to give such notice shall not affect the
Borrower's or Lenders' obligations in respect thereof. The Borrower agrees to
pay the Agent, upon demand, the principal amount of all funds advanced by the
Agent under this SECTION 10.3, together with interest thereon at the rate from
time to time applicable to Floating Rate Loans from the date of such advance
until the outstanding principal balance thereof is paid in full. If the Borrower
fails to make payment in respect of any such advance under this SECTION 10.3
within one (1) Business Day after the date the Borrower receives written demand
therefor from the Agent, the Agent shall promptly notify each Lender and each
Lender agrees that it shall thereupon make available to the Agent, in Dollars in
immediately available funds, the amount equal to such Lender's Pro Rata Share of
such advance. If such funds are not made available to the Agent by such Lender
within one (1) Business Day after the Agent's demand therefor, the Agent will be
entitled to recover any such amount from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Agent its Pro Rata
Share of any such unreimbursed advance under this SECTION 10.3 shall neither
relieve any other Lender of its obligation hereunder to make available to the
Agent such other Lender's Pro Rata Share of such advance on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Agent. All
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outstanding principal of, and interest on, advances made under this SECTION 10.3
shall constitute Obligations for purposes hereof.
10.4 HEADINGS. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
10.5 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof.
10.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Agent is authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
10.7 EXPENSES; INDEMNIFICATION.
(A) EXPENSES. The Borrower shall reimburse the Agent for any reasonable
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Agent, which attorneys and paralegals may be employees of the Agent) paid or
incurred by the Agent in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to reimburse the
Agent and the Lenders for any costs, internal charges and out-of-pocket expenses
(including attorneys' and paralegals' fees and time charges of attorneys and
paralegals for the Agent and the Lenders, which attorneys and paralegals may be
employees of the Agent or the Lenders) paid or incurred by the Agent or any
Lender in connection with the collection of the Obligations and enforcement of
the Loan Documents. In addition to expenses set forth above, at a time when a
Default exists, the Borrower agrees to reimburse the Agent, promptly after the
Agent's request therefor, for (i) each audit or other business analysis
performed by or for the benefit of the Lenders in connection with this Agreement
or the other Loan Documents and (ii) servicing (including collecting) the
receivables of the Borrower and its Subsidiaries in an amount equal to the
Agent's then reasonable and customary charges for each person employed to
perform such audit, analysis or receivables servicing, plus all costs and
expenses (including without limitation, travel expenses) incurred by the Agent
in the performance of such audit, analysis or receivables servicing. Agent shall
provide the Borrower with a detailed statement of all reimbursements requested
under this SECTION 10.7(A).
(B) INDEMNITY. The Borrower further agrees to defend, protect, indemnify,
and hold harmless the Agent and each and all of the Lenders and each of their
respective Affiliates, and each of such Agent's, Lender's, or Affiliate's
respective officers, directors, employees, attorneys and agents (including,
without limitation, those retained in connection with the satisfaction or
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attempted satisfaction of any of the conditions set forth in ARTICLE V)
(collectively, the "INDEMNITEES") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitees in connection with
any investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of:
(i) this Agreement, the other Loan Documents or any of the
Transaction Documents (as defined in the Amended and Restated Credit
Agreement), or any act, event or transaction related or attendant thereto
or to the Initial Acquisitions(as defined in the Amended and Restated
Credit Agreement), any Permitted Acquisition (as defined in the Amended
and Restated Credit Agreement), the Mergers(as defined in the Amended and
Restated Credit Agreement), the Public Offerings (as defined in the
Amended and Restated Credit Agreement) or the Related Transactions (as
defined in the Amended and Restated Credit Agreement), the making of the
Loans, and the issuance of and participation in Letters of Credit
hereunder, the management of such Loans or Letters of Credit, the use or
intended use of the proceeds of the Loans or Letters of Credit hereunder,
or any of the other transactions contemplated by the Transaction Documents
(as defined in the Amended and Restated Credit Agreement); or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation,
attorney, expert and consulting fees and costs of investigation,
feasibility or remedial action studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future relating to violation of any
Environmental, Health or Safety Requirements of Law arising from or in
connection with the past, present or future operations of the Borrower,
its Subsidiaries or any of their respective predecessors in interest, or,
the past, present or future environmental, health or safety condition of
any respective property of the Borrower or its Subsidiaries, the presence
of asbestos-containing materials at any respective property of the
Borrower or its Subsidiaries or the Release or threatened Release of any
Contaminant into the environment (collectively, the "INDEMNIFIED
MATTERS");
PROVIDED, HOWEVER, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused by or resulting from (y) a
dispute among the Lenders or a dispute between any Lender and the Agent, or (z)
the willful misconduct or Gross Negligence of such Indemnitee or breach of
contract by such Indemnitee with respect to the Loan Documents, in each case, as
determined by the final non-appealed judgment of a court of competent
jurisdiction. If the undertaking to indemnify, pay and hold harmless set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrower shall contribute the maximum portion which it
is permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees.
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(C) WAIVER OF CERTAIN CLAIMS; SETTLEMENT OF CLAIMS. The Borrower further
agrees to assert no claim against any of the Indemnitees on any theory of
liability for consequential, special, indirect, exemplary or punitive damages.
No settlement shall be entered into by the Borrower or any if its Subsidiaries
with respect to any claim, litigation, arbitration or other proceeding relating
to or arising out of the transactions evidenced by this Agreement, the other
Loan Documents or in connection with the Initial Acquisitions, any Permitted
Acquisition, the Mergers (as defined in the Amended and Restated Credit
Agreement), the Public Offerings (as defined in the Amended and Restated Credit
Agreement) or Related Transactions (as defined in the Amended and Restated
Credit Agreement) (whether or not the Agent or any Lender or any Indemnitee is a
party thereto) unless such settlement releases all Indemnitees from any and all
liability with respect thereto.
(D) SURVIVAL OF AGREEMENTS. The obligations and agreements of the Borrower
under this SECTION 10.7 shall survive the termination of this Agreement.
10.8 NUMBERS OF DOCUMENTS. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders.
10.9 ACCOUNTING. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles.
10.10 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
10.11 NONLIABILITY OF LENDERS. The relationship between the Borrower and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
10.12 GOVERNING LAW. ANY DISPUTE BETWEEN THE BORROWER AND THE AGENT, ANY
LENDER, OR ANY INDEMNITEE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF NEW YORK.
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
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(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF NEW YORK, NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT, ANY LENDER OR
ANY INDEMNITEE SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS
PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL
JURISDICTION OVER THE BORROWER OR (2) ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(c) SERVICE OF PROCESS. THE BORROWER WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS,
PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THEREOF BY
THE AGENT OR THE LENDERS BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE BORROWER ADDRESSED AS PROVIDED HEREIN. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE AGENT OR THE LENDERS TO SERVE ANY SUCH WRITS,
PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW THE
BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY
JURISDICTION SET FORTH ABOVE.
(d) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
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EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(e) WAIVER OF BOND. THE BORROWER WAIVES THE POSTING OF ANY BOND OTHERWISE
REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR
PROCEEDING TO REALIZE ON THE COLLATERAL ENFORCE ANY JUDGMENT OR OTHER COURT
ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT.
(f) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
THIS SECTION 10.13, WITH ITS COUNSEL.
10.14 NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
10.15 SUBORDINATION OF INTERCOMPANY INDEBTEDNESS. The Borrower agrees that
any and all claims of the Borrower against any Guarantor, any endorser or any
other guarantor of all or any part of the Obligations, or against any of its
properties, including, without limitation, pursuant to the any intercompany
Indebtedness permitted under SECTION 7.3(A)(VI), shall be subordinate and
subject in right of payment to the prior payment, in full and in cash, of all
Obligations. Notwithstanding any right of the Borrower to ask, demand, ▇▇▇ for,
take or receive any payment from any Guarantor, all rights, liens and security
interests of the Borrower, whether now or hereafter arising and howsoever
existing, in any assets of any Guarantor shall be and are subordinated to the
rights, if any, of the Lenders and the Agent in those assets. The Borrower shall
have no right to possession of any such asset or to foreclose upon any such
asset, whether by judicial action or otherwise, unless and until all of the
Obligations shall have been paid in full in cash and satisfied and all financing
arrangements under this Agreement and the other Loan Documents between the
Borrower and the Agent and the Lenders have been terminated. If, during the
continuance of a Default, all or any part of the assets of any Guarantor, or the
proceeds thereof, are subject to any distribution, division or application to
the creditors of any Guarantor, whether partial or complete, voluntary or
involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding, then, and in any such event, any payment or distribution of any kind
or character, either in cash, securities or other property, which shall be
payable or deliverable upon or with respect to any indebtedness of any Guarantor
to the Borrower, including, without limitation, pursuant to the any intercompany
Indebtedness permitted under SECTION 7.3(A)(VI)
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("INTERCOMPANY INDEBTEDNESS") shall be paid or delivered directly to the Agent
for application on any of the Obligations, due or to become due, until such
Obligations shall have first been paid in full in cash and satisfied; PROVIDED,
HOWEVER, ordinary course payments or distributions made by any Guarantor to the
Borrower shall be required to be paid or delivered to the Agent only upon the
Agent's request. The Borrower irrevocably authorizes and empowers the Agent to
demand, ▇▇▇ for, collect and receive every such payment or distribution and give
acquittance therefor and to make and present for and on behalf of the Borrower
such proofs of claim and take such other action, in the Agent's own name or in
the name of the Borrower or otherwise, as the Agent may deem necessary or
advisable for the enforcement of this SECTION 10.15. The Agent may vote such
proofs of claim in any such proceeding, receive and collect any and all
dividends or other payments or disbursements made thereon in whatever form the
same may be paid or issued and apply the same on account of any of the
Obligations. Should any payment, distribution, security or instrument or
proceeds thereof be received by the Borrower upon or with respect to the
Intercompany Indebtedness during the continuance of a Default and prior to the
satisfaction of all of the Obligations and the termination of all financing
arrangements under this Agreement and the other Loan Documents between the
Borrower and the Agent and the Lenders, the Borrower shall receive and hold the
same in trust, as trustee, for the benefit of the Agent and the Lenders and
shall forthwith deliver the same to the Agent, for the benefit of the Agent and
the Lenders, in precisely the form received (except for the endorsement or
assignment of the Borrower where necessary), for application to any of the
Obligations, due or not due, and, until so delivered, the same shall be held in
trust by the Borrower as the property of the Agent and the Lenders; PROVIDED,
HOWEVER, ordinary course payments or distributions made by any Guarantor to the
Borrower shall be required to be paid or delivered to the Agent only upon the
Agent's request. If the Borrower fails to make any such endorsement or
assignment to the Agent, the Agent or any of its officers or employees are
irrevocably authorized to make the same. The Borrower agrees that until the
Obligations have been paid in full in cash and satisfied and all financing
arrangements under this Agreement and the other Loan Documents between the
Borrower and the Agent and the Lenders have been terminated, the Borrower will
not assign or transfer to any Person (other than the Agent) any claim the
Borrower has or may have against any Guarantor.
10.16 USURY NOT INTENDED. It is the intent of the Borrower and each Lender
in the execution and performance of this Agreement and the other Loan Documents
to contract in strict compliance with applicable usury laws, including conflicts
of law concepts, governing the Advances of each Lender including such applicable
laws of the State of Texas and the United States of America from time-to-time in
effect. In furtherance thereof, the Lenders and the Borrower stipulate and agree
that none of the terms and provisions contained in this Agreement or the other
Loan Documents shall ever be construed to create a contract to pay, as
consideration for the use, forbearance or detention of money, interest at a rate
in excess of the Maximum Rate and that for purposes hereof "interest" shall
include the aggregate of all charges which constitute interest under such laws
that are contracted for, charged or received under this Agreement; and in the
event that, notwithstanding the foregoing, under any circumstances the aggregate
amounts taken, reserved, charged, received or paid on the Advances, include
amounts which by applicable law are deemed interest which would exceed the
Maximum Rate, then such excess shall be deemed to be a mistake and each Lender
receiving same shall credit the same on the principal of its Notes (or if such
Notes shall have been paid in full, refund said excess to the Borrower). In the
event that the maturity of the Notes are accelerated by reason of any election
of the holder
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thereof resulting from any Default under this Agreement or otherwise, or in the
event of any required or permitted prepayment, then such consideration that
constitutes interest may never include more than the Maximum Rate and excess
interest, if any, provided for in this Agreement or otherwise shall be canceled
automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall be credited on the applicable Notes (or, if the
applicable Notes shall have been paid in full, refunded to the Borrower of such
interest). In determining whether or not the interest paid or payable under any
specific contingencies exceeds the Maximum Rate, the Borrower and the Lenders
shall to the maximum extent permitted under applicable law amortize, prorate,
allocate and spread in equal parts during the period of the full stated term of
the Notes all amounts considered to be interest under applicable law at any time
contracted for, charged, received or reserved in connection with the
Obligations. The provisions of this Section shall control over all other
provisions of this Agreement or the other Loan Documents which may be in
apparent conflict herewith.
10.17 BUSINESS LOANS. The Borrower warrants and represents that the Loans
evidenced by the Notes are and shall be for business, commercial, investment or
other similar purposes and not primarily for personal, family, household or
agricultural use, as such terms are used in Chapter One ("CHAPTER ONE") of the
Texas Credit Code. At all such times, if any, as Chapter One shall establish a
Maximum Rate, the Maximum Rate shall be the "indicated rate ceiling" (as such
term is defined in Chapter One) from time to time in effect.
ARTICLE 11
THE AGENT
11.1 APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, NA is appointed by the
Lenders as the Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Agent (for so long as the Agent remains
in such capacity under this Agreement) to act as the contractual representative
of such Lender with only the rights and duties expressly set forth herein and in
the other Loan Documents. The Agent agrees to act as such contractual
representative upon the express conditions contained in this ARTICLE XI.
Notwithstanding the use of the defined term "Agent," it is expressly understood
and agreed that the Agent shall not have any fiduciary responsibilities to any
Lender by reason of this Agreement and that the Agent is merely acting as the
representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not assume any fiduciary duties
to any of the Lenders, (ii) is a "representative" of the Lenders within the
meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting as
an independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders agrees to assert no claim against the Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender waives.
11.2 POWERS. The Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties or fiduciary duties to the Lenders, or any
obligation to the Lenders to take any action hereunder or
83
under any of the other Loan Documents except any action specifically provided by
the Loan Documents required to be taken by the Agent.
11.3 GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is found in a final judgment by a court of
competent jurisdiction to have arisen solely from (i) the Gross Negligence or
willful misconduct of such Person or (ii) breach of contract by such Person with
respect to the Loan Documents.
11.4 NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, COLLATERAL, RECITALS,
ETC. Neither the Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in ARTICLE V, except receipt of items
required to be delivered solely to the Agent; (iv) the existence or possible
existence of any Default or (v) the validity, effectiveness or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith. The Agent shall not be responsible to any Lender for any recitals,
statements, representations or warranties herein or in any of the other Loan
Documents, for the perfection or priority of any of the Liens on any of the
Collateral, or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility, or sufficiency of this Agreement or
any of the other Loan Documents or the transactions contemplated thereby, or for
the financial condition of any guarantor of any or all of the Obligations, the
Borrower or any of its Subsidiaries.
11.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or any other percentage of Lenders specified to be the
applicable percentage in this Agreement or any other Loan Document to act on
specified matters), and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all holders of
Notes. The Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
11.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as the Agent hereunder and under any other Loan Document by or through
employees, agents, and attorney-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
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11.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
11.8 THE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
solely from the Gross Negligence or willful misconduct of the Agent.
11.9 RIGHTS AS A LENDER. With respect to its Commitment, Loans made by it
and the Notes issued to it, the Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender and may exercise the
same as through it were not the Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity. The Agent may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which such Person is not prohibited
hereby from engaging with any other Person.
11.10 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
11.11 SUCCESSOR AGENT. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, and the Agent may be removed at
any time with or without cause by written notice received by the Agent from the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty days
after the retiring Agent's giving notice of resignation, then the retiring Agent
may appoint, on behalf of the Borrower and the Lenders, a successor Agent.
Notwithstanding anything herein to the
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contrary, so long as no Default has occurred and is continuing, each such
successor Agent shall be subject to approval by the Borrower, which approval
shall not be unreasonably withheld. Such successor Agent shall be a commercial
bank having capital and retained earnings of at least $50,000,000. Upon the
acceptance of any appointment as the Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Agent's resignation hereunder as
Agent, the provisions of this ARTICLE XI shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent hereunder and under the other Loan Documents.
11.12 COLLATERAL DOCUMENTS.
(a) Each Lender authorizes the Agent to enter into the Security Documents
and each of the other Collateral documents contemplated thereby (collectively,
the "COLLATERAL DOCUMENTS") to which it is a party and to take all action
contemplated by such documents. Each Lender agrees that no Holder of Secured
Obligations (other than the Agent) shall have the right individually to seek to
realize upon the security granted by any Collateral Document, it being
understood and agreed that such rights and remedies may be exercised solely by
the Agent for the benefit of the Holders of Secured Obligations upon the terms
of the Collateral Documents.
(b) In the event that any Collateral is hereafter pledged by any Person as
collateral security for the Obligations, the Agent is hereby authorized to
execute and deliver on behalf of the Holders of Secured Obligations any Loan
Documents necessary or appropriate to grant and perfect a Lien on such
Collateral in favor of the Agent on behalf of the Holders of Secured
Obligations.
(c) The Lenders hereby authorize the Agent, at its option and in its
discretion, to (y) release any Lien granted to or held by the Agent upon any
Collateral and/or (z) release any Guarantor from its obligations under the
Guaranty (i) upon termination of the Commitments and payment and satisfaction of
all of the Obligations at any time arising under or in respect of this Agreement
or the Loan Documents or the transactions contemplated hereby or thereby; (ii)
in connection with any transaction permitted by, but only in accordance with,
the terms of the applicable Loan Document; or (iii) in connection with any
transaction approved, authorized or ratified in writing by the Required Lenders,
unless such release is required to be approved by all of the Lenders hereunder.
Upon request by the Agent at any time, the Lenders will confirm in writing the
Agent's authority to release particular types or items of Collateral pursuant to
this SECTION 11.12(C).
(d) Upon any sale or transfer of assets constituting Collateral which is
permitted pursuant to the terms of any Loan Document, or consented to in writing
by the Required Lenders or all of the Lenders, as applicable, or consummation of
any transaction involving the sale of all or substantially all of the assets of
a Guarantor and upon at least five Business Days' prior written request by the
Borrower, the Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the
Liens granted to the Agent for the benefit of the Holders of Secured Obligations
herein or pursuant hereto upon the Collateral that was sold or transferred or
evidence the release of the applicable
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Guarantor from its obligations under the Guaranty; PROVIDED, HOWEVER, that (i)
the Agent shall not be required to execute any such document on terms which, in
the Agent's opinion, would expose the Agent to liability or create any
obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Secured Obligations any other Guarantor's
obligations under the Guaranty or any Liens upon (or obligations of the Borrower
or any Subsidiary in respect of) all interests retained by the Borrower or any
Subsidiary, including (without limitation) the proceeds of the sale, all of
which shall continue to constitute part of the Collateral.
ARTICLE 12
SETOFF; RATABLE PAYMENTS
12.1 SETOFF. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default occurs and is continuing, any
indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
12.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
SECTIONS 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
12.3 APPLICATION OF PAYMENTS. Subject to the provisions of SECTION 9.2,
(i) prior to the occurrence of a Default, the Agent shall apply all payments and
prepayments in respect of the Obligations in such order as shall be specified by
the Borrower and (ii) after the occurrence of a Default, the Agent shall, unless
otherwise specified at the direction of the Required Lenders which direction
shall be consistent with the last sentence of this SECTION 12.3, apply all
payments and prepayments in respect of any Obligations and all proceeds of
Collateral in the following order:
(a) first, to pay interest on and then principal of any portion of the
Loans which the Agent may have advanced on behalf of any Lender for which the
Agent has not then been reimbursed by such Lender or the Borrower;
(b) second, to pay interest on and then principal of any advance made
under Section 10.3 for which the Agent has not then been paid by the Borrower or
reimbursed by the Lenders;
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(c) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Agent;
(d) fourth, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders and the Issuing Banks;
(e) fifth, to pay interest due in respect of Swing Line Loans;
(f) sixth, to pay interest due in respect of Loans (other than Swing Line
Loans) and L/C Obligations;
(g) seventh, to the ratable payment or prepayment of principal outstanding
on Swing Line Loans;
(h) eighth, to the ratable payment or prepayment of principal outstanding
on Loans (other than Swing Line Loans) and Reimbursement Obligations in such
order as the Agent may determine in its sole discretion;
(i) ninth, to provide required cash collateral, if required pursuant to
Section 3.10 and
(j) tenth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied FIRST, to repay
outstanding Floating Rate Loans, and THEN to repay outstanding Eurodollar Rate
Loans with those Eurodollar Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in CLAUSE (II) of this SECTION 12.3 and the
related provisions of this Agreement are set forth solely to determine the
rights and priorities of the Agent, the Swing Line Bank, and the Issuing Banks
as among themselves. The order of priority set forth in CLAUSES (D) through (J)
of this SECTION 12.3 may at any time and from time to time be changed by the
Required Lenders without necessity of notice to or consent of or approval by the
Borrower, or any other Person; provided, that the order of priority of payments
in respect of Swing Line Loans may be changed only with the prior written
consent of the Swing Line Bank. The order of priority set forth in CLAUSES (A)
through (C) of this Section 12.3 may be changed only with the prior written
consent of the Agent.
12.4 RELATIONS AMONG LENDERS.
(a) Except with respect to the exercise of set-off rights of any Lender in
accordance with SECTION 12.1, the proceeds of which are applied in accordance
with this Agreement, and except as set forth in the second sentence of CLAUSE
(B) below, each Lender agrees that it will not take any action, nor institute
any actions or proceedings, against the Borrower or any other obligor hereunder
or with respect to any Collateral or any Loan Document, without the prior
written consent of the Required Lenders or, as may be provided in this Agreement
or the other Loan Documents, at the direction of the Agent.
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(b) The Lenders are not partners or co-venturers, and no Lender shall be
liable for the acts or omissions of, or (except as otherwise set forth herein in
case of the Agent) authorized to act for, any other Lender. Notwithstanding the
foregoing, and subject to SECTION 12.2, any Lender shall have the right to
enforce on an unsecured basis the payment of the principal of and interest on
any Loan made by it after the date such principal or interest has become due and
payable pursuant to the terms of this Agreement.
ARTICLE 13
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with SECTION 13.3 hereof. Notwithstanding CLAUSE (II) of this SECTION 13.1, any
Lender may at any time, without the consent of the Borrower or the Agent, assign
all or any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; PROVIDED, HOWEVER, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent may treat the payee
of any Note as the owner thereof for all purposes hereof unless and until such
payee complies with SECTION 13.3 hereof in the case of an assignment thereof or,
in the case of any other transfer, a written notice of the transfer is filed
with the Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
13.2 PARTICIPATIONS.
(A) PERMITTED PARTICIPANTS; EFFECT. Subject to the terms set forth in this
SECTION 13.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender, any L/C
Interest of such Lender or any other interest of such Lender under the Loan
Documents on a pro rata or non-pro rata basis. Notice of such participation to
the Agent shall be required prior to any participation becoming effective with
respect to a Participant which is not a Lender or an Affiliate of a Lender. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents except that, for
purposes of ARTICLE IV hereof, the Participants shall be entitled to the same
rights as if they were Lenders.
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(B) VOTING RIGHTS. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which requires the consent of all of the affected Lenders pursuant to
the terms of SECTION 9.3.
(C) BENEFIT OF SETOFF. The Borrower agrees that each Participant shall be
deemed to have the right of setoff provided in SECTION 12.1 hereof in respect to
its participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
right of setoff provided in SECTION 12.1 hereof with respect to the amount of
participating interests sold to each Participant except to the extent such
Participant exercises its right of setoff. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in
SECTION 12.1 hereof, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with SECTION 12.2 as if each Participant were a Lender.
13.3 ASSIGNMENTS.
(A) PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its Commitment,
all Loans owing to it, all of its participation interests in existing Letters of
Credit, and its obligation to participate in additional Letters of Credit
hereunder) in accordance with the provisions of this SECTION 13.3. Each
assignment shall be of a constant, and not a varying, ratable percentage of all
of the assigning Lender's rights and obligations under this Agreement. Such
assignment shall be effected through an Assignment Agreement substantially in
the form of EXHIBIT A hereto and shall not be permitted hereunder unless such
assignment is either for all of such Lender's rights and obligations under the
Loan Documents or, without the prior written consent of the Agent, involves
Loans and Commitments in an aggregate amount of at least $5,000,000. The consent
of the Agent and, prior to the occurrence of a Default or Unmatured Default, the
Borrower (which consent, in each such case, shall not be unreasonably withheld),
shall be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof. Notwithstanding the
foregoing, any Lender may at any time, without the consent of the Borrower or
the Agent, assign all or any portion of its rights under this Agreement and its
Notes to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such assignment
shall release the transferor Lender from its obligations hereunder.
(B) EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of a notice of
assignment, substantially in the form attached as APPENDIX I to EXHIBIT A hereto
(a "NOTICE OF ASSIGNMENT"), together with any consent required by SECTION
13.3(A) hereof, and (ii) payment of a $3,500 fee to the Agent for processing
such assignment, such assignment shall become effective on the effective date
specified in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment, Loans and L/C Obligations under the
applicable assignment agreement are "plan assets" as defined under ERISA and
that the rights and interests of the
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Purchaser in and under the Loan Documents will not be "plan assets" under ERISA.
On and after the effective date of such assignment, such Purchaser, if not
already a Lender, shall for all purposes be a Lender party to this Agreement and
any other Loan Documents executed by the Lenders and shall have all the rights
and obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party hereto, and no further consent or action by the
Borrower, the Lenders or the Agent shall be required to release the transferor
Lender with respect to the percentage of the Aggregate Commitment, Loans and
Letter of Credit participations assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this SECTION 13.3(B),
the transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their Commitments, as adjusted
pursuant to such assignment.
(C) THE REGISTER. The Agent shall maintain at its address referred to in
SECTION 14.1 a copy of each Commitment and Acceptance delivered pursuant to
SECTION 2.4(B) and each Assignment Agreement delivered to and accepted by it
pursuant to this SECTION 13.3 and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the Commitment of and
principal amount of the Loans owing to, each Lender from time to time and
whether such Lender is an original Lender, became a Lender pursuant to SECTION
2.4(B) or the assignee of another Lender pursuant to an assignment under this
SECTION 13.3. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower and each of its
Subsidiaries, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
13.4 CONFIDENTIALITY. Subject to SECTION 13.5, the Agent and the Lenders
shall hold all nonpublic information obtained pursuant to the requirements of
this Agreement and identified as such by the Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices and in any event
may make disclosure reasonably required by a prospective Transferee in
connection with the contemplated participation or assignment or as required or
requested by any Governmental Authority or representative thereof or pursuant to
legal process and shall require any such Transferee to agree (and require any of
its Transferees to agree) to comply with this SECTION 13.4. In no event shall
the Agent or any Lender be obligated or required to return any materials
furnished by the Borrower; PROVIDED, HOWEVER, each prospective Transferee shall
be required to agree that if it does not become a participant or assignee it
shall return all materials furnished to it by or on behalf of the Borrower in
connection with this Agreement.
13.5 DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Borrower and its Subsidiaries and the Collateral; provided that
prior to any such disclosure, such prospective Transferee shall agree to
preserve in accordance with SECTION 13.4 the confidentiality of any confidential
information described therein.
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ARTICLE 14
NOTICES
14.1 GIVING NOTICE. Except as otherwise permitted by SECTION 2.11 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Documents shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
14.2 CHANGE OF ADDRESS. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE 15
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by telex or telephone, that it has taken
such action.
ARTICLE 16
LIMITED WAIVER OF DEFAULTS
The Lenders hereby waive any Defaults under SECTIONS 7.4(A), 7.4(B),
7.4(C), 7.4(D) and 8.1(E) of the Amended and Restated Credit Agreement,
provided, however, that the waivers contained in this ARTICLE 16 shall relate
only to Defaults under such Section occurring during the period from July 1,
2000 through and including October 31, 2000. This waiver is limited solely to
the purposes and to the extent provided herein and shall not be construed to be
a waiver, except as specifically provided in ARTICLE 16 of this Agreement, (i)
of any term, condition or provision of that Agreement, or (ii) of any Default
other than those described in this ARTICLE 16 of this Agreement or that has or
may have occurred or occurs after the date hereof under any Section of this
Agreement, including those described in SECTION 7.4(A), 7.4(B), 7.4(C), 7.4(D)
and 8.1(E) of this Agreement.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the Effective Date.
METALS USA, INC., as the Borrower
By: S/S ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and
Chief Accounting Officer
Address:
▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President and Chief
Accounting Officer
Telephone No.: 713/▇▇▇-▇▇▇▇
Facsimile No.: 713/965-0067
BANK ONE, NA
(FORMERLY KNOWN AS THE FIRST NATIONAL BANK
OF CHICAGO), Individually as a Lender and as
Agent
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: 713/▇▇▇-▇▇▇▇
Facsimile No.: 713/751-6777
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