EXHIBIT-10.75
[EXECUTION COPY]
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Dated as of March 26, 2004
Among
SYRATECH CORPORATION
(the Borrower)
THE FINANCIAL INSTITUTIONS PARTIES
HERETO FROM TIME TO TIME
(the Lenders)
and
BANK OF AMERICA, N.A.
(the Administrative Agent)
TABLE OF CONTENTS(1)
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(1) This Table of Contents is included for reference purposes only and does not constitute part of the Loan and Security Agreement.
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DURATION OF INTEREST PERIODS; MAXIMUM NUMBER OF LIBOR RATE LOANS; MINIMUM INCREMENTS. |
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EXHIBITS AND SCHEDULES |
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ANNEX B | WIRE TRANSFER PROCEDURES |
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EXHIBIT A | FORM OF REVOLVING CREDIT NOTE |
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EXHIBIT B | FORM OF BORROWING BASE CERTIFICATE |
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EXHIBIT C | FORM OF OPINION OF COUNSEL FOR BORROWER |
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EXHIBIT D | FORM OF ASSIGNMENT AND ACCEPTANCE |
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EXHIBIT E | FORM OF SETTLEMENT REPORT |
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Schedule 6.1(b) | Subsidiaries; Ownership of Stock |
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Schedule 6.1(d) | Compliance with Law; Governmental Approvals |
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Schedule 6.1(e) | Borrower’s Businesses |
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Schedule 6.1(f) | Title to Properties |
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Schedule 6.1(g) | Liens |
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Schedule 6.1(h) | Indebtedness and Guaranties |
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Schedule 6.1(i) | Litigation |
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Schedule 6.1(j) | Proprietary Rights |
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Schedule 6.1(o) | ERISA |
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Schedule 6.1(u) | Location of Offices and Receivables |
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Schedule 6.1(v) | Location of Inventory |
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Schedule 6.1(x) | Employee Relations |
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Schedule 6.1(y) | Trade Names |
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Schedule 6.1(z) | Real Estate |
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Schedule 6.1(aa) | Bank Accounts, Lockboxes, Etc. |
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Schedule 9.10 | Use of Proceeds |
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v
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Dated as of March 26, 2004
SYRATECH CORPORATION, a Delaware corporation, the financial institutions parties hereto from time to time as Lenders, and BANK OF AMERICA, N.A., a national banking association as the Administrative Agent for the Lenders, agree as follows:
PRELIMINARY STATEMENT
The Borrower, the Lender and the Administrative Agent are parties to the Loan and Security Agreement dated as of April 16, 1997, as amended (the “Existing Loan Agreement”).
The Existing Loan Agreement by its terms expires on April 15, 2004. The Borrower has requested that the Administrative Agent and the Lenders amend the Existing Loan Agreement and extend its Termination Date. For the convenience of the parties and without any intention to effect a repayment or novation of the Secured Obligations outstanding under the Existing Loan Agreement, the parties have agreed to effect such amendments and extension by amending and restating the Existing Loan Agreement in its entirety.
STATEMENT OF AGREEMENT
Accordingly, in consideration of the Existing Loan Agreement, the financial accommodations outstanding thereunder, the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
Account Debtor means a Person who is obligated on a Receivable.
ACH Transactions means any cash management or related services including the automatic clearing house transfer of funds by Bank of America for the account of the Borrower pursuant to agreement or overdrafts.
Acquire or Acquisition, as applied to any Business Unit or Investment, means the acquisition of such Business Unit or Investment by purchase, exchange, issuance of stock or other securities, or by merger, reorganization or any other method.
Administrative Agent means Bank of America, N.A. and each successor Administrative Agent appointed in accordance with the provisions of this Agreement.
Affiliate (and with corollary meanings, Affiliated) means, with respect to a Person, (a) any officer, director, manager, or managing agent of such Person, (b) any spouse,
parents, brothers, sisters, children and grandchildren of such Person, (c) any association, partnership, trust, entity or enterprise in which such Person is a director, officer or general partner, (d) any other Person, (i) that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such given Person, (ii) that directly or indirectly beneficially owns or holds 10% or more of any class of voting stock, member interest or partnership or other interest of such Person or any Subsidiary of such Person, or (iii) 10% or more of the voting stock, member interest or partnership or other interest of which is directly or indirectly beneficially owned or held by such Person or a Subsidiary of such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or partnership or other interests, by contract or otherwise.
Agency Account means an account of one or more Borrower maintained with a Clearing Bank pursuant to an Agency Account Agreement.
Agency Account Agreement means an agreement among Borrower, the Administrative Agent and a Clearing Bank (if other than the Administrative Agent) concerning the collection of payments which represent the proceeds of Receivables or other Collateral.
Agent’s Office means the office of the Administrative Agent specified in or determined in accordance with the provisions of Section 15.1.
Agreement means this Agreement, including the Exhibits and Schedules hereto.
Agreement Date means the date as of which this Agreement is dated.
Anniversary means March 26, 2005 and each March 26 thereafter.
Applicable Law means all applicable provisions of constitutions, statutes, rules, regulations and orders of all applicable governmental bodies and all applicable orders and decrees of all courts and arbitrators.
Applicable Margin means (a) as to Base Rate Loans, 1.00%, and (b) as to LIBOR Rate Loans, 3.0%; provided, however, (x) if the Pricing Fixed Charge Coverage Ratio calculated for the four Fiscal Quarter period most recently ended exceeds 1:00 to 1:00, the Applicable Margin shall be decreased, effective on the fifth Business Day following delivery of financial statements in accordance with Section 10.1(b), (i) as to Base Rate Loans, to 0.5%, and (ii) as to LIBOR Rate Loans, to 2.50%, and (y) if Fixed Charges exceed Pricing EBITDA by more than $5,000,000 for the twelve (12) month period ending June 30, 2005 or for any twelve (12) month period ending at the end of any Fiscal Quarter thereafter, the Applicable Margin shall be increased, effective on July 1, 2005 or the day immediately following the last day of such subsequent Fiscal Quarter, as the case may be, (i) as to Base Rate Loans, to 1.25%, and (ii) as to LIBOR Rate Loans, to 3.75%.
Assignment and Acceptance means an assignment and acceptance in the form attached hereto as Exhibit D assigning all or a portion of a Lender’s interests, rights and obligations under this Agreement pursuant to Section 13.1.
Authorized Officer has the meaning specified in Section 2.2(a)(iii).
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Bank of America means Bank of America, N.A., a national banking association.
Bank Products means any one or more of the following types of services or facilities extended to the Borrower by a Lender or any Affiliate of a Lender in reliance on such Lender’s agreement to indemnify such Affiliate: (i) credit cards; (ii) ACH Transactions; (iii) cash management, including controlled disbursement services; and (iv) Interest Rate Protection Agreements.
Bank Product Reserve means any reserve which the Administrative Agent from time to time establishes in its reasonable discretion for the Bank Products then provided or outstanding.
Bankers Acceptance means a draft presented in connection with a drawing under a Letter of Credit by the beneficiary thereof, maturing not more than 180 days after presentation and accepted by the issuer of the Letter of Credit.
Bankruptcy Code means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).
Base Rate means, for any day, the rate of interest in effect for such day as publicly announced from time to time by Bank of America in Charlotte, North Carolina as its “prime rate” (the “prime rate” being a rate set by Bank of America based upon various factors including the Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate). Any change in the prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. Each interest rate based upon the Base Rate shall be adjusted simultaneously with any change in the Base Rate.
Base Rate Loan means a Revolving Loan bearing interest determined with reference to the Base Rate.
Benefit Plan means an employee benefit plan as defined in Section 3(3) of ERISA (other than a Multiemployer Plan) in respect of which any Borrower or any Related Company is, or within the immediately preceding six years was, an “employer” as defined in Section 3(5) of ERISA, including such plans as may be established after the Agreement Date.
Borrower means Syratech.
Borrowing means a borrowing of Revolving Credit Loans bearing interest at the same rate, made by all Lenders on the same date and, in the case of LIBOR Rate Loans, having a single Interest Period, and the continuation or conversion of an existing Loan or Loans in whole or in part.
Borrowing Base means, at any time, an amount equal to the following:
(a) 80% (or such lesser percentage as the Administrative Agent may in its reasonable credit judgment, applying standards customary to institutional asset-based lenders, determine from time to time following any
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adverse change in dilution or other measure of value of the Receivables (or any of them)) of the face value of Eligible Receivables due and owing at such time, plus
(b) the least of
(i) the Inventory Limit, and
(ii) 60% (or such lesser percentage as the Administrative Agent may in its reasonable credit judgment, applying standards customary to institutional asset-based lenders, determine from time to time following any adverse change in quality, composition, salability or other measure of value of the Inventory) of the Cost of Eligible Inventory at such time, and
(iii) the Inventory Base (as adjusted from time to time by the Administrative Agent in its reasonable credit judgment), minus
(c) the sum of (i) the Reimbursement Obligations of the Borrowers at such time, plus (ii) the aggregate Letter of Credit Amount of standby Letters of Credit outstanding at such time, plus (iii) 40% (or such greater or lesser percentage derived by subtracting from 100% the then applicable advance rate against Eligible Inventory) of the aggregate Letter of Credit Amount of Inventory Letters of Credit at such time, plus (iv) the aggregate Letter of Credit amount of Letters of Credit the issuance of which has been authorized by the Administrative Agent and Bank of America pursuant to Section 3.4(b) but that have not yet been issued, minus
(d) the Reserves.
Borrowing Base Certificate means a certificate in the form attached hereto as Exhibit B or in such other form as may be acceptable to the Administrative Agent from time to time.
Business Day means any day other than a Saturday, Sunday or other day on which banks in Atlanta, Georgia are authorized to close and, when used with respect to LIBOR Rate Loans, means any such day on which dealings are also carried on in the applicable interbank LIBOR market.
Business Unit means the assets constituting the business, or a division or operating unit thereof, of any Person.
Capital Expenditures means, with respect to any Person, all expenditures made and liabilities incurred for the acquisition of assets (other than assets which constitute a Business Unit) that are not, in accordance with GAAP, treated as expense items for such Person in the year made or incurred, or as a prepaid expense applicable to a future year or years.
Capitalized Lease means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.
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Capitalized Lease Obligation means Debt represented by obligations under a Capitalized Lease, and the amount of such Debt shall be the capitalized amount of such obligations determined in accordance with GAAP.
Cash Collateral means cash or Cash Equivalents on which the Administrative Agent, for the benefit of itself as Administrative Agent and the Lenders, has a first priority Lien.
Cash Collateral Account means a special interest-bearing deposit account consisting of cash maintained by the Administrative Agent and under the sole dominion and control of the Administrative Agent, for its benefit and for the benefit of the Lenders, established pursuant to the provisions of Section 4.16(a) for purposes set forth therein.
Cash Equivalents means
Cash Interest Expense means, as to any computation period, the amount accrued for the interest payments with respect to Debt during such period, including fees paid under this Agreement, other than such fees and expenses paid solely in connection with the closing of the transactions contemplated hereby on the Effective Date and excluding any payment in kind interest.
Chief Financial Officer means the chief financial officer of Syratech.
Clearing Bank means Bank of America and any other banking institution with which an Agency Account has been established pursuant to an Agency Account Agreement.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Collateral means and includes all of the Borrower’s right, title and interest in and to each of the following, wherever located and whether now or hereafter existing or now owned or hereafter acquired or arising:
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including, without limitation, all rights as an unpaid vendor or lienor (including, without limitation, stoppage in transit, replevin and reclamation) with respect to such goods and other properties;
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Commitment means, as to each Lender, the amount set forth opposite such Lender’s name on Annex A hereto (or, from and after the date hereof, the amount last set forth in the Register, if different), representing such Lender’s obligation, upon and subject to the terms and conditions of this Agreement, to make its Proportionate Share of Loans and to acquire participations in Letters of Credit.
Commitment Percentage means, as to any Lender at the time of determination, the result, expressed as a percentage, obtained by dividing such Lender’s Commitment at such time by the Revolving Credit Facility at such time.
Consolidated Subsidiaries means, as to the Borrower, each Subsidiary listed as such on Schedule 6.1(b), and any additional Subsidiary of the Borrower whose accounts are at the time in question, in accordance with GAAP and pursuant to the written consent of the Administrative Agent, which consent may be withheld in its absolute discretion or conditioned upon, inter alia, the execution and delivery of guaranties and security documents, consolidated with those of the Borrower.
Contaminant means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance or waste or any constituent of any such substance or waste.
Controlled Disbursement Account means each account maintained by and in the name of the Borrower with a Disbursing Bank designated as such on Schedule 6.1(aa) or with Bank of America, for the purpose of disbursing Revolving Credit Loan proceeds and other amounts deposited thereto pursuant to Sections 2.2(b)(i) and 8.1(b)(ii).
Cost means, when applied to Inventory of the Borrower, the lower of (a) the cost thereof computed in accordance with GAAP on a first-in first-out or FIFO basis, and (b) the fair market value thereof.
Covenant EBITDA means, as to any computation period, EBITDA for such period, plus Discontinued Operations Expense to the extent deducted in calculating EBITDA.
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Covenant Fixed Charge Coverage Ratio means, as to any computation period, the ratio of (i) Covenant EBITDA for the computation period to (ii) Fixed Charges for such period, determined as of the last day of such computation period.
Current Assets means, with respect to any Person, the aggregate amount of assets of such Person which should properly be classified as current assets in accordance with GAAP, after deducting adequate reserves in each case where a reserve is appropriate in accordance with GAAP.
Current Liabilities means, with respect to any Person, the aggregate amount of all Liabilities of such Person which should properly be classified as current liabilities in accordance with GAAP.
Debt means
Default means any of the events specified in Section 12.1 that, with the passage of time or giving of notice or both, would constitute an Event of Default.
Default Margin means 2.0%.
Deposit Account has the meaning specified in the definition “Collateral.”
Dilution means, for any computation period, the fraction, expressed as a percentage, the numerator of which is the aggregate amount (expressed in Dollars) of all charge-offs, deductions, returns, allowances or other reductions of any kind made to Receivables of the Borrower during such period (excluding cash payments made by Account Debtors on Receivables), and the denominator of which is the aggregate amount (expressed in Dollars) of sales of the Borrower for such period.
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Dilution Reserve means, as of any date of determination, without duplication, such reserve as the Administrative Agent may from time to time establish and revise from time to time in the exercise of its reasonable credit judgment, applying standards customary to institutional asset-based lenders, to reflect the Dilution as of any such date with respect to Receivables of the Borrower for the immediately preceding twelve-month period to the extent such Dilution exceeds ten percent (10%).
Disbursing Bank means any commercial bank with which a Controlled Disbursement Account is maintained after the Effective Date.
Discontinued Operations means the Rauch Sale and the closing of the Borrower’s Rosemar manufacturing facility.
Discontinued Operations Expense means the total sum expensed as a result of or in connection with the Discontinued Operations, whether or not characterized as such for the purposes of GAAP, including, without limitation, cash payments to Rauch under the Rauch Sale Agreement and severance expenses in connection with the closing of the Rosemar facility.
Dollar and “$” means freely transferable United States dollars.
EBITDA for a specified period means consolidated Net Income of the Borrower and its Consolidated Subsidiaries for such period, before provision for interest expense, income taxes, depreciation expense, amortization, and any extraordinary item(s), all determined in accordance with GAAP, minus any non-cash income items, including, without limitation, any such items resulting from the retirement of Indebtedness at a discount, to the extent included in computing EBITDA, and plus any non-cash charges to the extent deducted in computing EBITDA, including the non-cash portion of Discontinued Operations Expense, if any.
ERISA means the Employee Retirement Income Security Act of 1974, as in effect from time to time, and any successor statute.
ERISA Event means a “Reportable Event” as defined in Section 4043(c) of ERISA, but excluding any such event as to which the provision for 30 days’ notice to the PBGC is waived under applicable regulations, (b) the filing of a notice of intent to terminate a Benefit Plan subject to Title IV of ERISA or the treatment of an amendment to such a Benefit Plan as a termination under Section 4041 of ERISA, (c) the institution of proceedings by the PBGC to terminate a Benefit Plan subject to Title IV of ERISA or the appointment of a trustee to administer any such Benefit Plan or an event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan subject to Section 4042, (d) the imposition of any liability under Title IV of ERISA other than for PBGC premiums due but not yet payable, (e) the filing of an application for a minimum funding waiver under Section 412 of the Code, (f) a withdrawal by a Borrower or any Related Employer from a Benefit Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA), (g) a Benefit Plan intending to qualify under Section 401(a) of the Code losing such qualified status, (h) the failure to make a required contribution to a Benefit Plan, (i) a Borrower or any Related Company being in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan because of its complete or partial withdrawal (as
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described in Section 4023 or 4205 of ERISA) from such Multiemployer Plan, or (j) the occurrence of a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to any Benefit Plan.
Effective Date means the first date on which all of the conditions set forth in Section 5.1 shall have been fulfilled by the Borrower or waived by the Administrative Agent and the Lenders in accordance with the provisions of Section 15.10.
Effective Interest Rate means the rate of interest per annum on the Loans in effect from time to time pursuant to the provisions of Section 4.1(a), (b), (c), and (d).
Eligible Assignee means (i) a commercial bank, commercial finance company or other asset based Lender, having total assets in excess of $10,000,000,000; (ii) any Lender listed on the signature page of this Agreement; provided in each case that the representation contained in Section 13.2 shall be applicable with respect to such institution or Lender; (iii) any Affiliate of any Lender; and (iv) during the existence of an Event of Default, any Person reasonably acceptable to the Administrative Agent.
Eligible Inventory means items of Inventory of the Borrower held for sale in the ordinary course of the business of the Borrower (but not including packaging or shipping materials or maintenance supplies) and which meet all of the following requirements:
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Eligible Receivable means the unpaid portion of a Receivable payable in Dollars to the Borrower net of any returns, discounts, credits or other allowances and deductions agreed to by the Borrower and net of any amounts owed by the Borrower to the Account Debtor on such Receivable, and which meets all of the following requirements:
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Environmental Laws means all applicable federal, state, local and foreign laws now or hereafter in effect relating to pollution or protection of the environment, including applicable laws relating to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes into the environment (including, without limitation, ambient air, surface water, ground water or land) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal,
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removal, transport or handling of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes, and any and all applicable regulations, notices or demand letters issued, entered, promulgated or approved thereunder; such laws and regulations include but are not limited to the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., as amended; the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., as amended; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., as amended; the Clean Air Act, 42 U.S.C. § 7401 et seq., as amended; and state and federal lien and environmental cleanup programs.
Environmental Lien means a Lien in favor of any governmental entity for (a) any liability under Environmental Laws or (b) damages arising from, or costs incurred by such governmental entity in response to, a Release or threatened Release of a Contaminant into the environment.
Equipment means and includes, as to any Person, all of such Person’s then owned or existing and future acquired or arising, machinery, apparatus, equipment, motor vehicles, tractors, trailers, rolling stock, fittings, fixtures and other tangible personal property (other than Inventory) of every kind and description used in such Person’s business operations or owned by such Person or in which such Person has an interest and all parts, accessories and special tools and all increases and accessions thereto and substitutions and replacements therefor.
Event of Default means any of the events specified in Section 12.1.
Existing Credit Agreement means the Amended and Restated Loan and Security Agreement dated as of April 16, 1997 among Syratech, certain of its Subsidiaries, and Bank of America, as amended and in effect from time to time.
Existing Default means the Event of Default under the Existing Credit Agreement resulting from the Borrowers’ failure to comply with the requirements of Section 11.1(a) of the Existing Credit Agreement as of December 31, 2003.
Federal Funds Effective Rate means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve system arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next 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 rate charged to Bank of America on such transactions as determined by the Administrative Agent.
Field Exam means an on-site examination by the Administrative Agent of the Borrower and any of its Subsidiaries and their respective operations, books, records, accounting methods, procedures and controls, the Collateral and other property.
Financed Capital Expenditures means Capital Expenditures funded with the proceeds of Permitted Purchase Money Debt (excluding Loans) and those represented by Capitalized Lease Obligations.
Financing Statements means the Uniform Commercial Code financing statements executed and delivered by the Borrower to the Administrative Agent, naming the
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Administrative Agent as secured party and one or more Borrower as debtor(s), in connection with this Agreement.
Fiscal Month means each consecutive period of four or five weeks, the first of which begins on January 1 of each calendar year, ending on the Friday nearest the last day of a calendar month, except that the Fiscal Months that would otherwise end on the Fridays nearest the last days of March, June, September and December shall end on the last days of such months.
Fiscal Quarter means each of the four consecutive periods of three Fiscal Months each, beginning on the first day of a Fiscal Year.
Fiscal Year means the calendar year and when preceded or followed by the designation of a calendar year (e.g., 2004 Fiscal Year or Fiscal Year 2004) means such designated calendar year.
Fixed Charges means, as to any computation period, the sum of Cash Interest Expense, plus principal payments on Debt, plus Capital Expenditures (other than Financed Capital Expenditures), plus tax payments, in each case paid or due during such computation period.
GAAP means generally accepted accounting principles consistently applied and maintained throughout the period indicated and consistent with the prior financial practices of the Person in connection with which the term is used.
Governmental Approvals means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all applicable governmental bodies, whether federal, state, local, foreign national or provincial, and all agencies thereof.
Governmental Authority means any applicable government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of either, or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
Guaranty, Guaranteed or to Guarantee, as applied to any obligation of another Person shall mean and include, without duplication:
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Indebtedness of any Person means, without duplication, all Liabilities of such Person, and to the extent not otherwise included in Liabilities, the following:
Interest Payment Date means the first day of each calendar month commencing on May 1, 2004 and continuing thereafter until the Secured Obligations have been irrevocably paid in full.
Interest Period means, with respect to each LIBOR Rate Loan, the period commencing on the date of the making or continuation of or conversion to such LIBOR Rate Loan and ending one, two, three or six months thereafter, as the Borrower may elect in the applicable Notice of Borrowing or Notice of Conversion or Continuation; provided, that:
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Interest Rate Protection Agreement means an interest rate swap, cap or collar agreement or similar arrangement between the Borrower and a Lender or any Affiliate of a Lender, acceptable to the Administrative Agent in its reasonable credit judgment, providing for the transfer or mitigation of interest rate risks either generally or under specific contingencies.
Interest Rate Protection Reserve means, at any time, the aggregate of the obligations of the Borrower under all Interest Rate Protection Agreements to which the Borrower is a party in the event of a termination thereof, on an estimated “marked-to-market” basis.
Inventory has the meaning specified in the definition “Collateral.”
Inventory Base means, at any time, an amount equal to 80% (or such lesser percentage as the Administrative Agent may in its reasonable credit judgment, applying standards customary to institutional asset-based lenders, determine from time to time following any adverse change in quality, composition, salability or other measure of value of the Inventory) of the orderly liquidation value (net of liquidation expenses) of Inventory at such time, as determined by the Administrative Agent from time to time in its reasonable discretion.
Inventory Letter of Credit means a Letter of Credit issued for the purpose of purchasing Inventory of the account party thereon and any Bankers Acceptance created on presentation of a draft against such a Letter of Credit.
Inventory Limit means $30,000,000 or such lesser amount as the Administrative Agent may in its reasonable credit judgment, applying standards customary to institutional asset-based lenders, determine from time to time, actions resulting in the curtailment or cessation of a business or product line or other changes in the amount, nature or mix of inventory.
Investment means, with respect to any Person:
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IRS means the Internal Revenue Service.
Lee means Thomas H. Lee Company, a sole proprietorship.
Lee Affiliates means Lee, Thomas H. Lee Equity Fund III, L.P., Thomas H. Lee Foreign Fund III, L.P., THC Co-Investors III-A, LLC, THL Co—Investors III-B, LLC and any individual who is, at the date of determination, an employee of Lee.
Lender means at any time any financial institution party to this agreement at such time, including any such Person becoming a party hereto pursuant to the provisions of Article 13, and Lenders means at any time all of the financial institutions party to this Agreement at such time, including any such Persons becoming parties hereto pursuant to the provisions of Article 13.
Letter of Credit means any letter of credit issued (a) for the account of the Borrower and outstanding on the Effective Date pursuant to a Reimbursement Agreement satisfactory to the Administrative Agent or (b) by Bank of America pursuant to the Master L/C Agreement or Article 3.
Letter of Credit Amount means, with respect to any Letter of Credit, the aggregate maximum amount at any time available for drawing under such Letter of Credit.
Letter of Credit Availability means, as of the date of determination, the aggregate face amount of additional Letter of Credit Obligations that would be permitted to be outstanding hereunder at the time of determination in accordance with Section 3.2, which shall be an amount equal to the lesser of (i) the Letter of Credit Facility minus the Letter of Credit Obligations and (ii) Revolving Credit Availability, on such date.
Letter of Credit Documents means the Master L/C Agreement and each of the other documents, agreements and other writings required by Bank of America to be executed and/or delivered in connection with the issuance of a Letter of Credit, including, without limitation, any letter of credit application and reimbursement agreement.
Letter of Credit Facility means a subfacility of the Revolving Credit Facility providing for the issuance of Letters of Credit described in Article 3 and creation of Bankers Acceptances up to an aggregate amount of Letter of Credit Obligations at any one time outstanding not to exceed $30,000,000.
Letter of Credit Obligations means, at any time, the sum of (a) the Reimbursement Obligations of the Borrower at such time, plus (b) the aggregate Letter of Credit Amount of Letters of Credit outstanding at such time, plus (c) the aggregate Letter of Credit Amount of Letters of Credit the issuance of which has been authorized by the Administrative
17
Agent and Bank of America pursuant to Section 3.4(b) but that have not yet been issued, in each case as determined by the Administrative Agent.
Letter of Credit Reserve means, at any time, an amount equal to the aggregate Letter of Credit Obligations at such time, less the aggregate amount of all Letter of Credit Obligations fully secured by Cash Collateral, provided, that at the request of the Borrower, the Administrative Agent may, in its discretion, maintain the Letter of Credit Reserve in the full amount of the Letter of Credit Facility less the amount of any Letter of Credit Obligations secured by Cash Collateral.
Liabilities means all liabilities of a Person determined in accordance with GAAP and includable on a balance sheet of such Person prepared in accordance with GAAP.
LIBOR Rate means, for any Interest Period, with respect to LIBOR Rate Loans, the rate of interest per annum determined pursuant to the following formula:
LIBOR Rate = | Offshore Base Rate |
| |
| 1.00 - Eurodollar Reserve Percentage |
| |
Where,
Offshore Base Rate means the rate per annum appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If for any reason such rate is not available, the Offshore Base Rate shall be, for any Interest Period, the rate per annum appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates. If for any reason none of the foregoing rates is available, the Offshore Base Rate shall be, for any Interest Period, the rate per annum determined by the Administrative Agent as the rate of interest at which dollar deposits in the approximate amount of the LIBOR Rate Loan comprising part of such Borrowing would be offered by Bank of America’s London Branch to major banks in the offshore dollar market at their request at or about 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period.
Eurodollar Reserve Percentage means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, rounded upward to the next 1/100th of 1%) in effect on such day applicable to member banks under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Offshore Rate for each outstanding LIBOR Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
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LIBOR Rate Loan means any Revolving Credit Loan which bears interest determined with reference to the LIBOR Rate.
Lien as applied to the property of any Person means:
Loan means any Revolving Credit Loan, whether a Base Rate Loan or a LIBOR Rate Loan, as well as all such loans collectively.
Loan Account and Loan Accounts have the meanings specified in Section 5.5.
Loan Documents means, collectively, this Agreement, the Notes, the Security Documents, the Letter of Credit Documents, and each other instrument, agreement and document executed and delivered by the Borrower or any Affiliate or Subsidiary of the Borrower in connection with this Agreement or the Secured Obligations, and each other instrument, agreement or document referred to herein or contemplated hereby.
Lockbox means the U. S. Post Office Box(es) specified in the Lockbox Agreement.
Lockbox Agreement means the agreement between the Borrower and a Clearing Bank concerning the establishment of a Lockbox for the collection of Receivables.
Master L/C Agreement means the Master Agreement for Letters of Credit dated on or about September 15, 1995, made by the Borrower, certain Subsidiaries of the Borrower and Syratech Hong Kong in favor of Bank of America and its Affiliates setting forth certain terms and conditions of all Letters of Credit, provided that in the case of any conflict between the
19
terms of the Master L/C Agreement and this Agreement, the provisions of this Agreement shall control.
Materially Adverse Effect means any act, omission, event or undertaking which, singly or in the aggregate, would or could be expected, in the reasonable credit judgment of the Required Lenders, to have a materially adverse effect upon (a) the business, assets, properties, liabilities, condition (financial or otherwise), or results of operations of the Borrower, (b) upon the ability of the Borrower to perform any obligations under this Agreement or any other Loan Document to which it is a party, or (c) the legality, validity, binding effect, enforceability or admissibility into evidence of any Loan Document or the ability of the Administrative Agent or any Lender to enforce any material rights or remedies under or in connection with any Loan Document; in any case, whether resulting from any single act, omission, situation, status, event, or undertaking, together with other such acts, omissions, situations, statuses, events, or undertakings and in each case as determined by the Required Lenders in the exercise of its/their reasonable credit judgment.
Merged Subsidiary means each of the Subsidiaries of the Borrower merged into the Borrower pursuant to the Mergers.
Mergers means the mergers of the Merged Subsidiaries of Syratech with and into Syratech Corporation, with Syratech as the survivor, as contemplated by the Merger Agreements.
Merger Agreements means the Agreements and Plans of Merger listed on Schedule 1 - Merger Documents attached hereto.
Multiemployer Plan means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which the Borrower or a Related Company is required to contribute or has contributed within the immediately preceding six years.
Net Income or Net Loss means, as applied to any Person, the net income (or net loss) of such Person for the period in question after giving effect to deduction of or provision for all operating expenses, all taxes and reserves (including reserves for deferred taxes) and all other proper deductions, all determined in accordance with GAAP, provided that there shall be excluded:
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Net Outstandings of any Lender means, at any time, the sum of (a) all amounts paid by such Lender (other than pursuant to Section 14.7) to the Administrative Agent in respect of Loans by such Lender under the Revolving Credit Facility, minus (b) all amounts received by the Administrative Agent and paid by the Administrative Agent to such Lender for application, pursuant to this Agreement, to reduction of the outstanding principal balance of the Loans of such Lender.
Net Worth of any Person means the total shareholders’ equity or aggregate partnership capital (including capital stock (including specifically any Preferred Stock), parties’ capital, additional paid-in capital and retained earnings, after deducting treasury stock) which would appear as such on a balance sheet of such Person prepared in accordance with GAAP.
Non-Ratable Loan means a Base Rate Loan made by Bank of America in accordance with the provisions of Section 4.8(b).
Note means one of the Revolving Credit Notes, and Notes means more than one of such instruments.
Notice of Borrowing means a written notice, or telephonic notice followed by a confirming same-day written notice, requesting a Borrowing of either a Base Rate Loan or a LIBOR Rate Loan, which is given by telex or facsimile transmission in accordance with the applicable provisions of Section 2.2 and which specifies (i) the amount of the requested Borrowing, (ii) the date of the requested Borrowing, and (iii) if the requested Borrowing is of a LIBOR Rate Loan, the duration of the applicable Interest Period.
Notice of Conversion or Continuation has the meaning specified in Section 4.12.
Operating Lease means any lease (other than a lease constituting a Capitalized Lease Obligation) of real or personal property.
Overadvance Loans shall have the meaning set forth in Section 4.7(d).
PBGC means the Pension Benefit Guaranty Corporation and any successor agency.
Pending Loan has the meaning specified in Section 4.15(b).
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Permitted Guaranties means Guaranties arising out of the endorsement of negotiable instruments for deposit or collection, the issuance of Letters of Credit for the account of Syratech Hong Kong pursuant to the terms of the Master L/C Agreement, the Rauch Guaranty and similar transactions in the ordinary course of business.
Permitted Investments means:
Permitted Liens means:
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Permitted Purchase Money Debt means Purchase Money Debt of the Borrower incurred after the Agreement Date, as to which each of the following is true:
Person means an individual, corporation, limited liability company, partnership, association, trust or unincorporated organization or a government or any agency or political subdivision thereof.
Plan EBITDA means Covenant EBITDA for any computation period as set forth in the Projections.
Preferred Stock means up to 25,000 shares of Cumulative Redeemable Preferred Stock issued by Syratech in connection with the consummation of the Recapitalization.
Pricing EBITDA means EBITDA, minus any cash Discontinued Operations Expense not deducted in computing EBITDA.
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Pricing Fixed Charge Coverage Ratio means, as to any computation period, the ratio of (i) Pricing EBITDA for the computation period to (ii) Fixed Charges for such period, determined as of the last day of such computation period.
Principal Officers means Gregory W. Hunt and Robert Meers, so long as they are officers of Syratech.
Projections means the forecasted consolidated (a) balance sheets, (b) statements of operations and (c) cash flow statements of Syratech and the Consolidated Subsidiaries for two-year period beginning January 1, 2004, prepared on a monthly basis as to the first year of such period and thereafter on an annual basis, together with appropriate supporting details and a statement of underlying assumptions.
Proportionate Share or Ratable Share or Ratable means, as to any Lender, such Lender’s share of an amount in Dollars or other property at the time of determination equal to (i) the Commitment Percentage of such Lender, or (ii) if the Commitments are terminated, the result, expressed as a percentage, obtained by dividing the principal amount of the Loans then owing to such Lender by the total principal amount of all Loans then owing to all Lenders, or (iii) if no Loans are outstanding, the result, expressed as a percentage, obtained by dividing such Lender’s participation in the outstanding Letter of Credit Obligations by the total Letter of Credit Obligations then outstanding.
Proprietary Rights means and includes, as to the Borrower, all of the Borrower’s now owned and hereafter arising or acquired: patents, patent rights, copyrights, works which are the subject matter of copyrights, trademarks, service marks, trade names, trade styles, patent, trademark and service mark applications, and all licenses and rights related to any of the foregoing, all extensions, renewals, reissues, divisions, continuations and continuations-in-part of any of the foregoing and all rights to sue for past, present and future infringement of any of the foregoing.
Purchase Money Debt means
Purchase Money Lien means any Lien securing Purchase Money Debt, but only if such Lien shall at all times be confined solely to the tangible asset (other than Inventory) the purchase price of which was financed through the incurrence of the Purchase Money Debt secured by such Lien.
Rauch means Rauch Industries, Inc., a North Carolina corporation and a wholly owned Subsidiary of Syratech.
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Rauch Guaranty means the Rauch Guaranty, dated as of March 5, 2004, by Rauch in favor of the Administrative Agent.
Rauch Sale means the liquidation of the assets and sale of the stock of Rauch pursuant to the Rauch Sale Agreement.
Rauch Sale Agreement means a Stock Purchase Agreement among the purchaser, Rauch and the Borrower continuing terms and conditions reasonably satisfactory to the Administrative Agent.
Rauch Security Agreement means the Rauch Security Agreement, dated as of March 5, 2004, between Rauch and the Administrative Agent.
Real Estate means all of the Borrower’s or its Subsidiaries’ now owned or hereafter acquired estates in real property, including, without limitation, all fees, leaseholds, future interests and easements, together with all of the Borrower’s or such Subsidiaries’ now owned or hereafter acquired interests in the improvements and emblements thereon, the fixtures attached thereto and the easements appurtenant thereto.
Receivables has the meaning specified in the definition “Collateral.”
Register has the meaning specified in Section 13.1(d).
Reimbursement Agreement means, with respect to a Letter of Credit or Bankers Acceptance outstanding on the Effective Date, the agreement or other document pursuant to which the account party under such Letter of Credit is obligated to reimburse the issuer thereof for any amounts drawn thereunder (including such amounts as are evidenced from time to time by outstanding Bankers Acceptances), and with respect to any Letter of Credit issued on or after the Effective Date, such form of application therefor and form of reimbursement agreement therefor (whether in a single document or several documents) as Bank of America may employ in the ordinary course of business for its own account, with such modifications thereto as may be agreed upon by Bank of America and the Borrower, provided that such application and agreement and any modifications thereto are not inconsistent with the terms of this Agreement.
Reimbursement Obligations means the reimbursement or repayment obligations of the Borrower to Bank of America pursuant to Section 3.6 or pursuant to a Reimbursement Agreement with respect to amounts that have been drawn under Letters of Credit (including such amounts as are evidenced from time to time by outstanding Bankers Acceptances).
Related Company means any (i) corporation or limited liability company 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) partnership, limited liability company or other trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with the Borrower; (iii) member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Borrower, any entity described in clause (i) above or any entity described in clause (ii) above, or (iv) any other entity required to be aggregated with the Borrower pursuant to Section 414(o) of the Code.
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Release means release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment or into or out of any Real Estate, including the movement of Contaminants through or in the air, soil, surface water or groundwater.
Remedial Action means actions required to (i) clean up, remove, treat or in any other way address Contaminants in the indoor or outdoor environment; (ii) prevent the Release or threat of Release or minimize the further Release of Contaminants so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; or (iii) perform pre-remedial studies and investigations and post-remedial monitoring and care.
Required Lenders means, at any time, any combination of Lenders whose Commitment Percentages at such time aggregate at least 66-2/3%; provided, however, that Required Lenders shall mean any combination of Lenders whose Commitment Percentages at such time aggregate at least 50% for the purposes of (i) exercising the right to decline to fund their Ratable Share of Loans during the existence of an Event of Default as provided in Section 4.7(c), (ii) declaring an Event of Default under Section 12.1(d), and (iii) requesting the Administrative Agent to exercise remedies pursuant to Section 12.2(b).
Reserves means at any time the sum of the Usage Reserves, the Dilution Reserve, the Bank Product Reserve and such other reserves against the Borrowing Base as the Administrative Agent may determine from time to time, in the exercise of its reasonable credit judgment, applying standards customary to institutional asset-based lenders, to be an appropriate response to an adverse change affecting the value of the Collateral.
Restricted Distribution by any Person means (a) the retirement, redemption, purchase, or other acquisition for value of any capital stock or other equity securities or partnership interests issued by such Person, (b) the declaration or payment of any dividend or distribution on or with respect to any such securities or partnership interests, (c) any loan or advance by such Person to, or other investment by such Person in, the holder of any of such securities or partnership interests, and (d) any other payment (other than salaries of employees or advances made in the ordinary course of business to employees for travel and other expenses incurred in the ordinary course of business) by such Person with respect to such securities or partnership interests.
Restricted Payment means (a) any redemption, repurchase or prepayment or other retirement, prior to the stated maturity thereof or prior to the due date of any regularly scheduled installment or amortization payment with respect thereto, of any Debt, Subordinated Debt or other Indebtedness that is junior and subordinate to the Loans, (b) the payment by any Person of the principal amount of or interest on any Indebtedness (other than trade debt) owing to an Affiliate of such Person or to any Affiliate of any such Affiliate, and (c) the payment of any management, consulting or similar fee by any Person to any Affiliate of such Person.
Revolving Credit Availability means, as of the date of determination, the aggregate principal amount of Revolving Credit Loans available to be borrowed by the Borrower hereunder at the time in accordance with Section 2.1, which shall be an amount equal to the excess, if any, of (a) the lesser of (i) the Revolving Credit Facility minus the Reserves and (ii)
26
the Borrowing Base on such date, minus, in either case (b) the aggregate principal amount of Revolving Credit Loans outstanding on such date.
Revolving Credit Facility means the principal sum of $70,000,000 as the same may be reduced from time to time pursuant to the provisions of Section 2.5.
Revolving Credit Loans means loans made to the Borrower pursuant to Section 2.1 and refers to a Base Rate Loan and a LIBOR Rate Loan (each a Type of Revolving Credit Loan).
Revolving Credit Note means each Revolving Credit Note made by the Borrower payable to the order of a Lender evidencing the joint and several obligations of the Borrower to pay the aggregate unpaid principal amount of all Revolving Credit Loans made to it by such Lender (and any promissory note or notes that may be issued from time to time in substitution, renewal, extension, replacement or exchange therefor, whether payable to such Lender or a different lender, whether issued in connection with a Person becoming a lender after the Effective Date or otherwise), substantially in the form of Exhibit A hereto, with all blanks properly completed, either as originally executed or as the same may from time to time be supplemented, modified, amended, renewed, extended or refinanced.
SEC means the Securities and Exchange Commission (and any successor agency).
Schedule of Inventory means a schedule delivered by the Borrower to the Administrative Agent pursuant to the provisions of Section 8.14(b).
Schedule of Receivables means a schedule delivered by the Borrower to the Administrative Agent pursuant to the provisions of Section 8.14(a).
Secured Obligations means, in each case whether now in existence or hereafter arising,
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Security Documents means each of the following:
Security Interest means the Liens of the Administrative Agent, for its benefit and the benefit of the Lenders, on and in the Collateral effected hereby or by any of the Security Documents or pursuant to the terms hereof or thereof.
Senior Note Indenture means the Indenture dated as of April 16, 1997 between Syratech and State Street Bank and Trust Company, Trustee.
Senior Notes means the outstanding Syratech 11% Senior Notes due 2007, issued pursuant to the Senior Note Indenture.
Settlement Date means each Business Day after the Effective Date selected by the Administrative Agent in its sole discretion subject to and in accordance with the provisions of Section 4.8(c)(i) as of which a Settlement Report is delivered by the Administrative Agent and on which settlement is to be made among the Lenders in accordance with the provisions of Section 4.8.
Settlement Report means each report, substantially in the form attached hereto as Exhibit E, prepared by the Administrative Agent and delivered to each Lender and setting forth, among other things, as of the Settlement Date indicated thereon and as of the next preceding Settlement Date, the aggregate principal balance of all Revolving Credit Loans outstanding, each Lender’s Proportionate Share thereof, each Lender’s Net Outstandings and all Non-Ratable Loans made, and all payments of principal, interest and fees received, by the Administrative Agent from the Borrower during the period beginning on such next preceding Settlement Date and ending on such Settlement Date.
Solvent means, as to any Person, that such Person has capital sufficient to carry on its business and transactions in which it is about to engage and is able to pay its Indebtedness as it matures and owns property having a value, both at fair valuation and at present fair salable value, greater than the amount required to pay its Indebtedness.
Subordinated Debt means any Debt of the Borrower which is subordinated to the Secured Obligations on terms and conditions acceptable to the Required Lenders.
Subsidiary when used to determine the relationship of a Person to another Person, means a Person of which an aggregate of 50% or more of the stock of any class or classes or 50% or more of other ownership interests is owned of record or beneficially by such other Person or by one or more Subsidiaries of such other Person or by such other Person and one or more Subsidiaries of such Person, (a) if the holders of such stock or other ownership interests (i) are ordinarily, in the absence of contingencies, entitled to vote for the election of a majority of the directors (or other individuals performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency, or (ii) are entitled, as such holders, to vote for the election of a majority of the directors (or individuals performing
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similar functions) of such Person, whether or not the right so to vote exists by reason of the happening of a contingency, or (b) in the case of such other ownership interests, if such ownership interests constitute a majority voting interest.
Syratech means Syratech Corporation, a Delaware corporation and the survivor of the Mergers.
Syratech Hong Kong means Syratech (H.K.) Limited, a corporation organized under the laws of Hong Kong, the common stock of which is owned by Syratech.
Taxes means, with respect to any Person, any and all present or future taxes, including any change in the basis of taxation (except a change in the rate of taxation on the overall net income of such Person, by the jurisdiction, or by any political subdivision or taxing authority of any such jurisdiction, in which such Person has its principal office), levies, imposts, duties, fees, assessments, deductions, withholdings or other charges of whatever nature, including, without limitation, income, gross receipts, excise, property, sales, transfer, license, payroll, withholding, social security and franchise taxes now or hereafter imposed or levied by the United States of America, or any state, local or foreign government or by any department, agency or other political subdivision or taxing authority thereof and all interest, penalties, additions to tax or similar liabilities with respect thereto.
Termination Date means the earlier of
Type means a Base Rate Loan or a LIBOR Rate Loan.
Unfunded Vested Accrued Benefits means at any time, with respect to any Benefit Plan that is a pension plan within the meaning of Section 3(2) of ERISA, the amount (if any) by which (a) the present value of all vested nonforfeitable benefits under such Benefit Plan exceeds (b) the fair market value of all such Benefit Plan assets allocable to such benefits, as determined using such reasonable actuarial assumptions and methods as are specified in the Schedule B (Actuarial Information) to the most recent Annual Report (Form 5500) filed with respect to such Benefit Plan.
UCC means the Uniform Commercial Code as in effect from time to time in the State of Georgia.
Unused Fee means 0.50% per annum; provided that during any period that the Applicable Margin is determined under clause (x) of the proviso in the definition thereof, the Unused Fee shall be 0.375% per annum.
Unused Portion means on any date the amount by which the Revolving Credit Facility in effect on such date exceeds the sum of (i) the outstanding principal balance of all Loans on such date, plus (ii) the Letter of Credit Reserve (or lesser amount of Letter of Credit
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Obligations) on such date if such date is the last day of a month and, if not, on the last day of the month immediately preceding such date.
Usage Reserves means, at any time, the sum of the Letter of Credit Reserve and the Interest Rate Protection Reserve.
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32
33
34
35
36
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38
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None of the foregoing shall affect, impair or prevent the vesting of any of the Administrative Agent’s rights or powers under this Section 3.8.
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42
43
44
45
46
47
48
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Administrative Agent to each Lender on the same Business Day, and any such amounts that are received by the Administrative Agent after 1:00 p.m. will be paid by the Administrative Agent to each Lender on the following Business Day, except, that fees payable in respect of commercial or documentary Letters of Credit upon issuance thereof pursuant to Section 4.2(d)(i)(A) shall be paid by the Administrative Agent to the Lenders Ratably, payable monthly in arrears on each Interest Payment Date. Unless otherwise stated herein, the Administrative Agent shall distribute to each Lender such Lender’s share of fees payable to the Lenders pursuant to Section 4.2(c) based on such Lender’s unused Commitment, and such Lender’s Proportionate Share of fees payable to the Lenders pursuant to Sections 4.2(a) and (d) and shall distribute to each Lender such Lender’s Proportionate Share (or if different, such Lender’s share based upon the amount of the Secured Obligations then owing to each Lender) of the proceeds from the sale of, or other realization upon, all or any part of the Collateral following an Event of Default.
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L |
| = |
| (R - T) x P x D |
|
|
|
|
| 360 | |
L |
| = |
| amount payable | |
R |
| = |
| interest rate applicable to the LIBOR Rate Loan not borrowed, continued or converted, or prepaid | |
T |
| = |
| effective interest rate per annum at which any readily marketable bonds or other obligations of the United States, selected at the Administrative Agent’s sole discretion, maturing on or near the last day of the then applicable or requested Interest Period for such Loan and in approximately the same amount as such Loan, can be purchased by such Lender on the day of such payment of principal or failure to borrow, continue or convert | |
P |
| = |
| the amount of principal paid or the amount of the Loan requested or to have been continued or converted | |
D |
| = |
| the number of days remaining in the Interest Period as of the date of such payment or the number of days in the requested Interest Period | |
The Borrower shall pay such amount upon presentation by the Administrative Agent (or as to any Lender, by such Lender) of a statement setting forth the amount and the Administrative Agent’s (or such Lender’s) calculation thereof pursuant hereto, which statement shall be deemed true and correct absent manifest error.
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On the last day of the applicable Interest Period as to any amounts deposited to the Cash Collateral Account pursuant to clause (i) above or if a drawing under a Letter of Credit occurs with respect to any amounts deposited to the Cash Collateral Account pursuant to clause (ii) above, Borrower hereby authorizes the Administrative Agent to use the monies deposited in the Cash Collateral Account to make payment to the payee with respect to such Loan or drawing. The Cash Collateral Account shall be in the name of the Administrative Agent and the Administrative Agent shall have sole dominion and control over, and sole access to, the Cash Collateral Account. Neither the Borrower nor any Person claiming on behalf of or through the Borrower shall have any right to withdraw any of the funds held in the Cash Collateral Account. The Borrower agrees that it will not at any time (x) sell or otherwise dispose of any interest in the Cash Collateral Account or any funds held therein or (y) create or permit to exist any Lien upon or with respect to the Cash Collateral Account or any funds held therein, except as provided in or contemplated by this Agreement. The Administrative Agent shall exercise reasonable care in the custody and preservation of any funds held in the Cash Collateral Account and shall be deemed to have exercised such care if such funds are accorded treatment substantially equivalent to that which the Administrative Agent accords other funds deposited with the Administrative Agent, it being understood that the Administrative Agent shall not have any responsibility for taking any necessary steps to preserve rights against any parties with respect to any funds held in the Cash Collateral Account. Subject to the right of the Administrative Agent to withdraw funds from the Cash Collateral Account as provided herein, the Administrative Agent will, so long as no Default or Event of Default shall have occurred and be continuing, from time to time invest funds on deposit in the Cash Collateral Account, reinvest proceeds of any such investments which may mature or be sold, and invest interest or other income received from any such investments, in each case, in Cash Equivalents, as the Borrower may direct prior to the occurrence of a Default or Event of Default and as the Administrative Agent may select after the occurrence and during the continuance of a Default or Event of Default. Such proceeds, interest and income which are not so invested or reinvested in Cash Equivalents shall be deposited and held by the Administrative Agent in the Cash Collateral
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Account. The Administrative Agent makes no representation or warranty as to, and shall not be responsible for, the rate of return, if any, earned in any Cash Collateral. Any earnings on Cash Collateral shall be held as additional Cash Collateral on the terms set forth in this Section 4.16.
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Each request or deemed request for any borrowing hereunder shall be deemed to be a certification by the Borrower to the Administrative Agent and the Lenders as to the matters set forth in Section 5.2(a) and (b) and the Administrative Agent may, without waiving either condition, consider the conditions specified in Sections 5.2(a) and (b) fulfilled and a representation by the Borrower to such effect made, if no written notice to the contrary is received by the Administrative Agent prior to the making of the Loan then to be made.
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The outstanding stock of the Borrower and each of its Subsidiaries has been duly and validly issued and is fully paid and nonassessable by the issuer.
except for instances of noncompliance which would not, singly or in the aggregate, cause a Default or Event of Default or have a Materially Adverse Effect and in respect of which adequate reserves have been established on the books of the Borrower or such Subsidiary.
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Until the Revolving Credit Facility has been terminated and all the Secured Obligations have been indefeasibly paid in full, unless the Lenders shall otherwise consent in the manner provided in Section 15.10:
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Until the Revolving Credit Facility has been terminated and all the Secured Obligations have been indefeasibly paid in full, unless the Lenders shall otherwise consent in the manner provided for in Section 15.10, the Borrower will and, as appropriate, will cause each of its Subsidiaries to:
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except that this Section 9.6 shall not require the payment or discharge of any such tax, assessment, charge, levy or claim which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established on the appropriate books.
Representatives of the Lenders may accompany the Administrative Agent on such visits and, if the Administrative Agent shall have furnished to the Lenders fewer than four reports of Field Exams conducted with respect to the Borrower within the previous 12 months, any Lender may, subject to the other terms and conditions of this Section 9.9 applicable to the Administrative Agent, make such visits to the Borrower on its own. The Administrative Agent and the Lenders will take all reasonable steps to minimize any disruption of the Borrower’s operations that might be caused by the Lenders’ exercising any such inspection privileges and will coordinate with and through the Administrative Agent, any visits to the Borrower’s premises.
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All written information, reports, statements and other papers and data furnished to the Administrative Agent or any Lender, whether pursuant to this Article 10 or any other provision of this Agreement or any of the other Loan Documents, shall be, at the time the same is so furnished, complete and correct in all material respects to the extent necessary to give the Administrative Agent or such Lender true and accurate knowledge of the subject matter. Until the Revolving Credit Facility has been terminated and all the Secured Obligations have been indefeasibly paid in full, unless the Lenders shall otherwise consent in the manner set forth in Section 15.10, the Borrower will furnish to the Administrative Agent and to each Lender at its office then designated for notices pursuant to Section 15.1:
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All such financial statements shall be complete and correct in all material respects and prepared in accordance with GAAP (except, with respect to interim financial statements, for the omission of notes) applied consistently throughout the periods reflected therein.
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The Borrower authorizes the Administrative Agent to discuss the financial condition of the Borrower with the Borrower’s independent certified public accountants and agree that such discussion or communication shall be without liability to either the Administrative Agent or the Borrower’s independent certified public accountants. The Borrower shall deliver a letter addressed to such accountants authorizing them to comply with the provisions of this Section 10.2.
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Until the Revolving Credit Facility has been terminated and all the Secured Obligations have been indefeasibly paid in full, unless the Lenders shall otherwise consent in the manner set forth in Section 15.10, the Borrower will not, nor will it permit any Subsidiary to, directly or indirectly:
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and such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive calendar days, or an order granting the relief requested in such case or proceeding against the Borrower or any Subsidiary (including, but not limited to, an order for relief under such federal bankruptcy laws) shall be entered.
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The Borrower shall remain liable and will pay, on demand, any deficiency remaining in respect of the Secured Obligations, together with interest thereon at a rate per annum equal to the highest rate then payable hereunder on such Secured Obligations, which interest shall constitute part of the Secured Obligations.
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If to the Borrower: |
| Syratech Corporation |
|
|
|
With copies to: |
| Faye A. Florence, Esq. |
|
|
|
If to the Administrative Agent: |
| Bank of America, N.A. |
|
|
|
With a copy to: |
| Hunton & Williams LLP |
|
|
|
If to any Lender: |
| At such Lender’s address appearing on the signature pages hereof or on the signature pages to any agreement pursuant to which any Person becomes a Lender. |
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The foregoing shall not be construed to limit any other provisions of the Loan Documents regarding costs and expenses to be paid by the Borrower. The Borrower hereby authorizes the Administrative Agent and the Lenders to debit the Borrower’s Loan Accounts (by increasing the principal amount of the Revolving Credit Loan) in the amount of any such costs and expenses owed by the Borrower when due.
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provided, however, that anything herein to the contrary notwithstanding, the Required Lenders shall have the right to waive any Default or Event of Default and the consequences hereunder of such Default or Event of Default provided only that such Default or Event of Default does not arise under Section 12.1(f) or (g) or out of a breach of or failure to perform or observe any term, covenant or condition of this Agreement or any other Loan Document (other than the provisions of Article 12 of this Agreement) the amendment of which requires the unanimous consent of the Lenders; and provided further, that only the consent of the Lender providing the Bank Product shall be required for amendments to or waivers under the documentation for such Bank Product. The Required Lenders shall have the right, with respect to any Default or Event of Default that may be waived by them, to enter into an agreement with the Borrower providing for the forbearance from the exercise of any remedies provided hereunder or under the other Loan Documents without thereby waiving any such Default or Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers in several counterparts all as of the day and year first written above.
| BORROWER: | ||||
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| ||||
| SYRATECH CORPORATION | ||||
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| ||||
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| ||||
| By: /s/ Gregory W. Hunt |
| |||
| Name: Gregory W. Hunt | ||||
| Title: Senior Vice President and CFO | ||||
|
| ||||
|
| ||||
|
| ||||
| ADMINISTRATIVE AGENT: | ||||
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| ||||
| BANK OF AMERICA, N.A. | ||||
|
| ||||
|
| ||||
| By: /s/ Andrew A. Doherty |
| |||
| Name: Andrew A. Doherty | ||||
| Title: Vice President | ||||
|
| ||||
|
| ||||
|
| ||||
| LENDERS: | ||||
|
| ||||
| BANK OF AMERICA, N.A. | ||||
|
| ||||
|
| ||||
| By: /s/ Andrew A. Doherty |
| |||
| Name: Andrew A. Doherty | ||||
| Title: Vice President | ||||
|
| ||||
| Address: | 600 Peachtree Street, N.E. | |||
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| CONGRESS FINANCIAL CORPORATION | ||
|
| ||
|
| ||
| By: /s/ Paul Truax |
| |
| Name: Paul Truax | ||
| Title: Vice President | ||
|
| ||
| Address: | 1201 Main Street | |
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COMMITMENTS
Lender |
| Commitment |
| Commitment |
| |
|
|
|
|
|
| |
Bank of America, N.A. |
| $ | 35,000,000 |
| 50 | % |
Congress Financial Corporation (Southwest) |
| $ | 35,000,000 |
| 50 | % |
TOTAL |
| $ | 70,000,000.00 |
| 100.000 | % |
