REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT, dated as of September 30,
1998, by and among AMPCO-PITTSBURGH CORPORATION (hereinafter
called the "Company"), the Banks named in Section 2.01 hereof
(hereinafter each called a "Bank" and collectively called the
"Banks") and MELLON BANK, N.A., a national banking association,
as agent for the Banks under this Agreement (hereinafter in such
capacity called the "Agent");
PRELIMINARY STATEMENT:
WHEREAS, the Company has requested and the Banks and the
Agent are willing to make available to the Company, upon all of
the terms and conditions herein set forth, a revolving credit
facility;
NOW THEREFORE, in consideration of their mutual agreements
hereinafter set forth and intending to be legally bound hereby,
the parties hereto agree as follows;
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. Certain definitions. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the
following words and terms shall have the following meanings,
respectively, unless the context hereof otherwise clearly
requires:
"Affiliate" of a Person (the "Specified Person") shall mean
(a) any Person which directly or indirectly controls, or is
controlled by, or is under common control with, the Specified
Person, (b) any director or executive officer (or, in the case of
a Person which is not a corporation, any individual having
analogous powers) of the Specified Person or of a Person who is
an Affiliate of the Specified Person within the meaning of the
preceding clause (a). For purposes of the preceding sentence,
"control" of a Person includes the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent's Fees" shall have the meaning assigned to such
term in Section 2.05(b) hereof.
"Agreement" shall mean this Revolving Credit Agreement
as amended, modified or supplemented from time to time.
"Assignment Notice" shall have the meaning assigned to such
term in Section 9.14(c) hereof.
"Assets" of any Person at any time shall mean the assets of
such Person at such time, determined and consolidated in
accordance with GAAP.
"Base Rate" and "Base Rate Option" shall have the meanings
assigned to those terms in Section 2.07(a)(i) hereof.
"Base Rate Loan" shall mean any Loan bearing interest under
the Base Rate Option.
"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday under the laws of the Commonwealth of
Pennsylvania or other day on which banking institutions are
authorized or obligated to close in Pittsburgh, Pennsylvania.
"Closing Date" shall mean September 30, 1998.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to
time. References to sections of the Code shall be construed to
also refer to any successor sections.
"Commitment" and "Current Commitment" shall have the meaning
assigned to that term in Section 2.01 hereof.
"Consolidated Assets" shall mean the Assets of the Company
and its Consolidated Subsidiaries, determined and consolidated in
accordance with GAAP.
"Consolidated Book Net Worth" shall mean the consolidated
stockholder's equity of the Company and its Consolidated
Subsidiaries determined, both as to classification of items and
amounts, and consolidated in accordance with, GAAP.
"Consolidated EBIT" for any period, with respect to the
Company and its Consolidated Subsidiaries shall mean the sum of
(a) Consolidated Net Income for such period, (b) Consolidated
Interest Expense for such period, (c) charges against income for
foreign, federal, state and local income taxes for such period,
(d) extraordinary losses to the extent included in determining
such Consolidated Net Income (including after tax losses on a
sale of Assets outside of the ordinary course of business and not
otherwise included in extraordinary losses under GAAP), minus (e)
extraordinary gains to the extent included in determining such
Consolidated Net Income (including after tax gains on a sale of
Assets outside of the ordinary course of business and not
otherwise included in extraordinary gains under GAAP),, all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Coverage Ratio" for any period shall
mean the ratio of Consolidated EBIT for such period to
Consolidated Interest Expense for such period.
"Consolidated Interest Expense" for any period shall mean
the total interest expense of the Company and its Consolidated
Subsidiaries in respect of Funded Indebtedness for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" shall mean the net income from
continuing operations (after taxes) of the Company and its
Consolidated Subsidiaries, determined and consolidated in
accordance with GAAP, excluding, however, non-cash extraordinary
items.
"Consolidated Subsidiaries" at any particular time shall
mean those Subsidiaries of the Company whose accounts are, or
should be, consolidated with those of the Company in accordance
with GAAP.
"Corresponding Source of Funds" shall mean in the case of
any Euro-Rate Loan, the proceeds of hypothetical receipts by a
Notional Euro-Rate Funding Office of one or more Dollar deposits
in the interbank eurodollar market at the beginning of the Euro-
Rate Interest Period applicable to such Loan, having maturities
approximately equal to such Interest Period and in an aggregate
amount approximately equal to such Loan.
"Dollar", "Dollars" and the symbol "$" shall mean lawful
money of the United States of America.
"Environment" shall mean (without limitation) all air,
surface water, water vapor, groundwater, drinking water supply,
soil or land, including land surface or subsurface, and includes
all fish, wildlife and all other natural resources.
"Environmental Affiliate" shall mean, with respect to any
Person, any other Person whose liability (contingent or
otherwise) for any Environmental Claim such person has retained,
assumed or otherwise is liable for (by Law, agreement or
otherwise).
"Environmental Approvals" shall mean any governmental action
pursuant to or required under any federal, state or local
Environmental Law.
"Environmental Claim" shall mean, with respect to any
Person, any action, suit, proceeding, notice, claim, complaint,
lien, demand, request for information or other communication
(written or oral) by any other person (including but not limited
to any governmental authority, citizens' group or present or
former employee of such Person) based upon, alleging, asserting
or claiming any actual or potential (a) violation of any
Environmental Law, (b) liability under any Environmental Law or
(c) liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property
damages, material personal injuries, fines or penalties arising
out of, based on or resulting from the presence, or release into
the Environment, of any Environmental Concern Materials at any
location, whether or not owned by such Person.
"Environmental Cleanup Site" shall mean any location which
is listed or proposed for listing on the National Priorities
List, on CERCLIS or on any similar state list of sites requiring
investigation or cleanup.
"Environmental Concern Materials" shall mean (a) any
flammable substance, explosive, radioactive material, hazardous
material, hazardous waste, toxic substance, solid waste,
pollutant, contaminant or any related material, raw material,
substance, product or by-product or any substance specified in or
regulated by any Environmental Law, (b) any toxic chemical or
other substance from or related to industrial, commercial or
institutional activities, and (c) asbestos, gasoline, diesel
fuel, motor oil, waste and used oil, heating oil and other
petroleum products or compounds, polycholorinated biphenyls,
radon, urea formaldehyde, lead containing materials, radiation,
heat, noise, and other physical agents.
"Environmental Law" shall mean any Law, domestic or foreign,
whether now existing or subsequently enacted or amended, relating
to (a) pollution or protection of the Environment, including
natural resources, (b) exposure of Persons, including but not
limited to employees, to Environmental Concern Materials, (c)
protection of the public safety, health or welfare from the
effects of products, by-products, wastes, emissions, discharges
or releases of Environmental Concern Materials or (d) regulation
of the use or introduction into commerce of Environmental Concern
Materials including their manufacture, formulation, packaging,
labeling, distribution, transportation, handling, storage or
disposal.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
and regulations thereunder, in each case as in effect from time
to time. References to sections of ERISA shall be construed to
also refer to any successor sections.
"ERISA Group Member" means each trade or business (whether
or not incorporated and whether controlled by, controlling or
under common control with the Company) which together with the
Company is treated as a single employer under Section 414(b) or
414(c) of the Code.
"Euro-Rate" and "Euro-Rate Option" shall have the meanings
assigned to those terms in Section 2.07(a)(ii) hereof.
"Event of Default" shall mean any of the Events of Default
described in Article VII hereof.
"Expiration Date" shall mean the date which is the 364th day
following the Closing Date or, if extended in accordance with
Section 2.02, such extended date.
"Facility Fee" shall have the meaning assigned to such term
in Section 2.05(a) hereof.
"Federal Funds Effective Rate" shall have the meaning
assigned to such term in Section 2.07(a)(i) hereof.
"Funded Indebtedness" of a person at any time shall mean all
Indebtedness of such person which would at such time be
classified as a long-term liability of such person in accordance
with GAAP and shall also in any event include (a) any
Indebtedness having a final maturity more than one year from the
date of creation of such Indebtedness; and (b) any indebtedness,
regardless of its term, which is of the type described in
subsection (i), (ii), (iii) or (iv) of the definition of the term
Indebtedness below..
"GAAP" shall mean generally accepted accounting principles
in the United States of America (as such principles may change
from time to time) applied on a consistent basis (except for
changes in application with which the Company's independent
certified public accountants concur), applied both to
classification of items and amounts.
"Guarantor and Guarantors" shall mean each of Ampco-
Pittsburgh Securities V Corporation, a Delaware corporation; and
Union Electric Steel Corporation, a Pennsylvania corporation,
each a Subsidiary of the Company.
"Guaranty or Guaranties" shall mean the Guaranty and
Suretyship Agreement of each of the Guarantors of even date
herewith.
"Indebtedness" of a Person shall mean:
(i) all indebtedness or liability for or on account of
money borrowed by, or for or on account of deposits with or
advances to, such Person;
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(iii) all indebtedness or liability for or on account of
property or services purchased or acquired by such Person except
trade accounts that arise in the ordinary course of business but
only so long as such trade accounts are payable on customary
trade terms;
(iv) any amount secured by a Lien on property owned by such
Person (whether or not assumed) and capitalized lease obligations
of such person (without regard to any limitation of the rights
and remedies of the holder of such Lien or the lessor under such
capitalized lease to repossession or sale of such property);
(v) the face amount of all letters of credit issued for the
account of such Person and, without duplication, the unreimbursed
amount of all drafts drawn thereunder, and all other obligations
of such Person associated with such letters of credit or draws
thereon;
(vi) all obligations of such Person in respect of
acceptances or similar obligations issued for the account of such
Person; and
(vii) all obligations of such Person due and owing under
any interest rate or currency protection agreement, interest rate
or currency future, interest rate or currency option, interest
rate or currency swap or cap or other interest rate or currency
hedge agreement.
"Indemnified Parties" shall have the meaning assigned to
such term in Section 9.06(c) hereof.
"Interest Period" shall have the meaning assigned to that
term in Section 2.07(b) hereof.
"Law" shall mean any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance,
order, injunction, writ, decree or award of any Official Body.
"Leverage Ratio" for any period shall mean the ratio of the
Funded Indebtedness of the Company as at the end of such period
to the Consolidated Book Net Worth of the Company as at the end
of such period.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security
arrangement of any nature whatsoever, including but not limited
to any conditional sale or title retention arrangement, and any
assignment, deposit arrangement or lease intended as, or having
the effect of, security.
"Loan" shall mean any loan made by a Bank to the Company
under this Agreement, and "Loans" shall mean the loans made by
the Banks under this Agreement.
"Loan Documents" shall mean this Agreement, the Notes, the
Guaranties and all other ancillary agreements, instruments,
certificates and/or documents which are required to be or are
otherwise executed and delivered by the Company to the Agent
and/or to any Bank in connection with this Agreement, in each
case as the same may be amended, supplemented or modified from
time to time hereafter.
"London Business Day" shall mean a Business Day (as herein
defined) which is also a day for dealing in deposits in Dollars
by and among banks in the London interbank market.
"Material Adverse Effect" shall mean (a) a material adverse
effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or any Guarantor
individually or of the Company and its Subsidiaries taken as a
whole, (b) a material adverse effect on the ability of the
Company to perform or comply with any of the terms or conditions
of this Agreement or the ability of any Guarantor to perform or
comply with any of the terms or conditions of any Guaranty; or
(c) any adverse effect on the legality, validity, binding effect
of this Agreement, any Guaranty, or upon the ability of the Agent
or any Bank to enforce any rights or remedies under or in
connection herewith.
"Maturity Date" shall have the meaning assigned to that term
in Section 2.07(b) hereof.
"month", with respect to a Euro-Rate Interest Period, has
the following meaning unless a calendar month is specified or the
context otherwise clearly requires:
(i) if the first day of such Euro-Rate Interest Period is
the last day of a calendar month, a "month" is the interval
between the last days of consecutive calendar months;
(ii) otherwise, a "month" is the interval between the days
in consecutive calendar months numerically corresponding to the
first day of such Euro-Rate Interest Period or, if there is no
such numerically corresponding day in a particular calendar
month, then the last day of such calendar month.
"Note" shall mean a promissory note of the Company executed
and delivered pursuant to Section 2.03 of this Agreement,
together with all extensions, renewals, refinancings or
refundings in whole or part all of which are collectively
referred to as the "Notes".
"Notional Euro-Rate Funding Office" shall have the meaning
given to that term in Section 2.13(a) hereof.
"Office", when used in connection with the Agent, shall mean
its office located at One Mellon Bank Center, Pittsburgh,
Pennsylvania 15258, or at such other office or offices within the
United States of the Agent or branch, Subsidiary or Affiliate
thereof as may be designated in writing from time to time by the
Agent to the Company and the Banks.
"Official Body" shall mean any 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.
"Option" or "Interest Rate Option" shall mean the Base Rate
Option or the Euro-Rate Option, as the case may be.
"Participant" shall have the meaning assigned to such term
in Section 9.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
established under Title IV of ERISA or any other governmental
agency, department or instrumentality succeeding to the functions
of said corporation.
"Person" or "person" shall mean an individual, corporation,
partnership, trust, unincorporated association, joint venture,
joint-stock company, government (including political
subdivisions), governmental authority or agency, or any other
entity.
"Plan" means any employee pension benefit plan which is
covered by Title IV of ERISA and (i) which is maintained for
employees of the Company or any ERISA Group Member; or (ii) to
which the Company or any ERISA Group Member made, or was required
to make, contributions at any time within the preceding five
years.
"Potential Default" shall mean any event or condition which
with notice, passage of time or a determination by the Agent, or
any combination of the foregoing, would constitute an Event of
Default.
"Prime Rate" shall mean the interest rate per annum
announced from time to time by the Agent as its prime rate, such
interest rate to change automatically from time to time,
effective as of the effective date of each announced change in
the Prime Rate. The Prime Rate may be greater or less than other
interest rates charged by the Agent to other borrowers and is not
solely based or dependent upon the interest rate which the Agent
may charge any borrower or class of borrowers.
"Purchasing Bank" shall have the meaning assigned to such
term in Section 9.14(c) hereof.
"Reportable Event" means (i) a reportable event described in
Section 4043 of ERISA and regulations thereunder for which the
thirty day notice period has not been waived, (ii) a withdrawal
by a substantial employer from a Plan to which more than one
employer contributes, as referred to in Section 4063(b) of ERISA,
or (iii) a cessation of operations at a facility causing more
than twenty percent (20%) of Plan participants to be separated
from employment, as referred to in Section 4062(e) of ERISA.
"Required Banks" shall mean, as of any date, (i) so long as
any single Bank has made Loans constituting, in the aggregate, at
least 66 2/3% of the principal amount of Loans outstanding on
such date, or if no Loans are outstanding on such date, which has
a Commitment constituting, in the aggregate, at least 66 2/3% of
the Total Current Commitments of all the Banks, then Banks which
have made Loans constituting, in the aggregate, 100% of the
principal amount of Loans outstanding on such date, or if no
Loans are outstanding on such date, Banks which have Commitments
constituting, in the aggregate, at least 100% of the Total
Current Commitments of all the Banks, otherwise (ii) Banks which
have made Loans constituting, in the aggregate, at least 66 2/3%
of the principal amount of Loans outstanding on such date, or if
no Loans are outstanding on such date, Banks which have
Commitments constituting, in the aggregate, at least 66 2/3% of
the Total Current Commitments of all the Banks.
"Responsible Officer" shall mean the Chief Executive
Officer, Chief Financial Officer, President, Treasurer or
Controller of the Company, or such other officer or officers as
the Company may designate from time to time and otherwise
acceptable to the Agent.
"Rolling Period" shall mean with respect to any fiscal
quarter, such fiscal quarter and the three immediately preceding
fiscal quarters considered as a single accounting period.
"Set" of Loans shall mean those Loans made concurrently by
the Banks hereunder requested by the Company to be made on a
given day, having the same Maturity Date and bearing interest at
the same Interest Rate Option.
"Standard Notice" shall mean an irrevocable notice provided
to the Agent on a Business Day which is
(i) the same Business Day in the case of any Set of Base
Rate Loans;
(ii) at least three London Business Days in advance in the
case of any Set of Euro-Rate Loans.
Standard Notice must be provided on or before 12:00 o'clock
noon, Pittsburgh time on the last day permitted for such
notice.
"Stock Payment" by any Person shall mean any dividend,
distribution or payment of any nature (whether in cash,
securities, or other property) on account of or in respect of any
shares of the capital stock (or warrants, options or rights
therefor) of such Person, including but not limited to any
payment on account of the purchase, redemption, retirement,
defeasance or acquisition of any shares of the capital stock (or
warrants, options or rights therefor) of such Person, in each
case regardless of whether required by the terms of such capital
stock (or warrants, options or rights) or any other agreement or
instrument.
"Subsidiary" with respect to any Person shall mean any
corporation, association, joint venture, partnership or other
business entity (whether now existing or hereafter organized) of
which a majority (by number of shares or number of votes) of any
class of outstanding capital stock normally entitled to vote or
other ownership interest having ordinary voting power is at the
time as of which any determination is being made, owned or
controlled directly or indirectly by such Person or by such
Person and one or more Subsidiaries of such Person provided,
however, that when used with respect to the Company, the term
Subsidiary shall not include Vulcan, Inc., a Pennsylvania
corporation.
"Total Commitment" or "Total Current Commitment" shall have
the meaning assigned to such term in Section 2.01 hereof.
"UES Tangible Net Worth" shall mean the stockholder s equity
of Union Electric Steel Corporation ( UES ), determined, both as
to classification of items and amounts, in accordance with GAAP,
except that (a) there shall be deducted from stockholders equity
(i) the amount of any inter-company receivables and guaranties
and (ii) all intangible Assets included in the balance sheet of
UES, including but not limited to investments in its Subsidiaries
as recorded on its books, organization costs, securities issuance
costs, unamortized debt, discount and expense, goodwill, excess
of purchase price over net assets acquired, agreements not to
compete, patents trademarks, copyrights, trade secrets, knowhow,
licenses, franchises, research and development expenses and any
amount reflected as treasury stock and (b) there shall be added
to stockholder s equity the amount of any inter-company payables
owed Ampco UES Sub, Inc., a Delaware Corporation
1.02. Construction. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the
singular, the singular the plural and the part the whole and "or"
has the inclusive meaning represented by the phrase "and/or".
References in this Agreement to "determination" by the Agent or
the Banks or any Bank include good faith estimates by the Agent
or the Banks or any Bank (in the case of quantitative
determinations) and good faith beliefs by the Agent or the Banks
or any Bank (in the case of qualitative determinations). The
words "hereof", "herein", "hereunder" and similar terms in this
Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. The section and other
headings contained in this Agreement are for reference purposes
only and shall not control or affect the construction of this
Agreement or the interpretation thereof in any respect. Section,
subsection and exhibit references are to this Agreement unless
otherwise specified. All of the times set forth herein shall,
unless otherwise expressly noted, refer to the time in
Pittsburgh, Pennsylvania.
1.03. GAAP. Notwithstanding the definition of GAAP
contained herein, if any change in GAAP, after the date of this
Agreement is or shall be required to be applied to transactions
then or thereafter in existence, and a violation of one or more
provisions of this Agreement shall have occurred (or in the
opinion of the Agent or the Company would be likely to occur)
which would not have occurred or be likely to occur if no change
in accounting principles had taken place, the Company and the
Banks agree in such event to negotiate in good faith an amendment
of this Agreement which shall approximate to the extent possible
the economic effect of the original financial covenants after
taking into account such change in GAAP.
ARTICLE II
THE CREDIT
2.01 Revolving Loans. Subject to the terms and conditions
and relying upon the representations and warranties herein set
forth, each Bank severally agrees (such agreement being herein
called such Bank's "Commitment") to make Loans to the Company at
any time or from time to time on or after the Closing Date and to
but not including the earlier of the Expiration Date; or the
termination of the Commitment of such Bank, in an aggregate
principal amount not exceeding at any one time outstanding the
amount of such Bank's Current Commitment. The "Current
Commitment" of each Bank at any time shall mean the Commitment
amount set forth opposite its name below as such amount may have
been reduced under Section 2.06 hereof at such time. Each Set of
such Loans shall be made ratably by the Banks in accordance with
the percentage set opposite the name of each Bank below:
Name of Bank Commitment Amount Percentage
Mellon Bank, N.A. $5,000,000 66.6666%
PNC Bank $2,500,000 33.3333%
National Association
Total Commitment $7,500,000 100%
Within such limits of time and amount and subject to the
provisions of this Agreement, the Company may borrow, repay and
reborrow hereunder. The aggregate Current Commitments of all the
Banks at any time is sometimes referred to as the "Total
Commitment" or "Total Current Commitment".
2.02. Extension of Expiration Date. Provided that no
Potential Default or Event of Default shall have occurred and be
continuing, the Company may, prior to the then effective
Expiration Date, request that the then effective Expiration Date
be extended for an additional period of 364 days by providing
written notice to the Agent requesting such extension not more
than 90 days or less than 60 days before each such then effective
Expiration Date (each an "Extension Request"). The Agent shall,
promptly upon its receipt of any Extension Request, notify the
Banks of such request. At least thirty days prior to such then
effective Expiration Date, each Bank shall provide the Agent with
written notice of its approval or denial of the Company's
Extension Request which approval or denial shall be in the sole
and absolute discretion of each Bank (it being understood that
the failure of any Bank to provide such notice shall be deemed a
rejection of the Extension Request). Promptly upon receipt of
such notice (or deemed notice) from each Bank, the Agent shall
notify the Company of the approval or denial by each Bank of the
Extension Request.
Any extension of the Expiration Date shall be effective only if
approved by the Required Banks and shall be binding only upon the
Banks approving such Extension Request. Upon the approval of the
Required Banks of any Extension Request, but effective on the day
next immediately following the then effective Expiration Date,
the Expiration Date shall be automatically extended for a period
of 364 days from the then effective Expiration Date to the extent
of the Current Commitments of the Banks approving such extension.
In the event any Bank denies (or is deemed to have denied) an
Extension Request (each a "Non-Extending Bank") which is
otherwise approved by the Required Banks then (i) on the then
scheduled Expiration Date, such Non-Extending Bank's Commitment
shall terminate and taking into account any purchase of the Notes
of such Non-Extending Bank by a Replacement Bank as provided
below, the Company shall pay to the Agent for distribution to
such Non-Extending Bank, the unpaid principal balance of the
Loans of such Non-Extending Bank together with accrued and unpaid
interest, fees or other amounts due such Non-Extending Bank
pursuant to this Agreement; and (ii) the Company may request
another Bank or Banks (each a "Replacement Bank") or, with the
prior consent of the Agent (which consent shall not be
unreasonably withheld), other bank or banks (each, also a
"Replacement Bank") to assume all or part of the Commitment of
such Non-Extending Bank effective as of the then scheduled
Expiration Date unless otherwise agreed by and between the Non-
Extending Bank and the Replacement Bank. Upon any part of the
Commitment of a Non-Extending Bank being assumed by a Replacement
Bank, such Replacement Bank shall, to the extent of the
Commitment it has so assumed, purchase the Note of such Non-
Extending Bank, which shall sell the same without recourse or
warranty (except as to the amount due thereon, its title to such
Note and its right to sell the same) to such Replacement Bank at
a price in immediately available funds equal to the outstanding
principal amount of the Loans of the Non-Extending Bank assumed
whereupon (x) the then effective Expiration Date with respect to
the Commitment assumed shall be extended for a period of 364 days
commencing on the day next immediately following the then
effective Expiration Date, (y) each Replacement Bank, if
applicable, shall be deemed to be a "Bank" for purposes of this
Agreement, and (z) each Non-Extending Bank shall cease to be a
"Bank" for purposes of this Agreement (except with respect to any
unpaid interest due on the Notes it has sold, to any unpaid
principal and interest due on the Notes it has not sold and to
its rights hereunder to be reimbursed for costs and expenses, and
to indemnification with respect to matters attributable to
events, acts or conditions occurring prior to such assumption and
purchase) and shall no longer have any obligations hereunder.
2.03 The Notes. The obligations of the Company to repay
the aggregate unpaid principal amount of the Loans made by each
Bank to the Company pursuant to Section 2.01 hereof and to pay
interest thereon shall be evidenced in part by a single
promissory note of the Company for each Bank dated on or prior to
the Closing Date in substantially the form attached hereto as
Exhibit A, with the blanks appropriately filled and payable to
the order of the Bank in the amount of the lesser of such Bank's
Commitment or the unpaid principal amount of all Loans made to
the Company by such Bank. The outstanding principal amount of
each Note and of each Loan, the unpaid interest accrued thereon,
the interest rate or rates applicable and the Interest Period
applicable to each Loan shall be determined from the Agent's
records, which shall be presumed correct absent manifest error.
The executed Notes shall be delivered by the Company to the Agent
on or prior to the Closing Date and the Agent shall promptly
furnish such Notes to the respective Banks.
2.04 Making of Revolving Loans. (a) Whenever the Company
desires that the Banks make a Set of Loans hereunder it shall
give Standard Notice thereof to the Agent setting forth the
following information substantially in the form of Loan Request
attached hereto as Exhibit B:
(i) The date, which shall be a Business Day, on which such Loans
are to be made;
(ii) The Interest Rate Option applicable to such Set of Loans,
selected in accordance with Section 2.07(a) hereof;
(iii) The Interest Period to apply to such Set of Loans, selected
in accordance with Section 2.07(b) hereof; and
(iv) The total principal amount of such Set of Loans, selected in
accordance with Section 2.07(c) hereof.
Standard Notice having been so given, the Agent shall promptly
advise each Bank of the information set forth therein and of the
amount of such Bank's Loan. On the date specified in such Notice
each Bank shall make the proceeds of its Loan available to the
Company at the Agent's Office no later than 1:00 o'clock p.m., in
funds immediately available at such office. The failure of any
Bank to fund any Loan required of such Bank hereunder shall not
impose any increase in the obligations of the other Banks
hereunder, but such failure shall not relieve the other Banks of
their obligations to lend hereunder. The proceeds of each Set of
Loans may be applied by the Agent in whole or in part ratably
against amounts then due and payable by the Company to the Agent
or any Bank hereunder.
(b) Absent contrary notice from the Company by 12:00
o'clock noon, three Business Days prior to any Maturity Date, the
Company shall, at the Agent's option, be deemed to have given the
Agent notice at such time pursuant to Section 2.04(a) hereof to
the effect that the Company requests that the Banks make a Set of
Loans to the Company on such Maturity Date at the Base Rate
Option in an aggregate principal amount equal to the aggregate
principal amount of the Loans becoming due and payable on such
Maturity Date.
2.05. Facility Fee; Agency Fee.
(a) Facility Fee. The Company agrees, as a consideration for
the Commitments of the Banks hereunder, to pay to the Agent for
the ratable account of the Banks, a facility fee (the "Facility
Fee") for the period from the Closing Date to and including the
Expiration Date calculated (based on a year of 360 days and
actual days elapsed) at a rate per annum equal to (and in the
amount of) one quarter of one percent (.25%) of the daily average
amount of each Bank s Commitment (whether used or unused) in
effect during the calendar quarter (or other period, if shorter
than a calendar quarter) for which the Facility Fee is to be
determined. The Facility Fee shall be payable quarterly in
arrears beginning on the last day of September, 1998 (for the
period from the Closing Date through September 30, 1998) and on
the last day of each, December, March, June and September
thereafter, and on the Expiration Date or the date of complete
termination of the Commitments of the Banks hereunder, in each
case for the immediately preceding calendar quarter or other
period for which such fee has not been paid.
(b) Agency Fee. The Company agrees to pay to the Agent,
for the Agent s individual account a nonrefundable agency fee in
an amount and at such time or times as the Agent and the Company
have heretofore agreed pursuant to letter agreement from the
Agent to the Company of even date herewith as the same may be
amended or modified from time to time (the Agent s Fees ).
2.06. Termination or Reduction. The Company may at any
time at which there are no Loans outstanding hereunder terminate
in whole the Total Current Commitments of the Banks or at any
time or from time to time terminate ratably in part the Current
Commitments of the Banks to an amount not less than the sum of
the aggregate principal amount of the Loans then outstanding plus
the principal amount of all Loans not yet made as to which notice
has been given by the Company under Section 2.04, in either case
by giving not less than thirty (30) Business Days' prior written
or telephonic notice confirmed in writing to the Agent; provided
that any such partial termination shall be in a minimum aggregate
amount of $500,000 or an integral multiple thereof; and provided
further that the minimum Total Current Commitment shall be at
least $5,000,000 after giving effect to any partial termination.
After each such partial termination, the Facility Fee shall be
calculated upon the amount of the Total Current Commitments of
the Banks (whether used or unused) as so reduced. Any partial or
complete termination of the Commitments pursuant hereto shall be
permanent and irrevocable and may not thereafter be reinstated.
2.07. Interest Rates; Maturity Periods; Transactional
Amounts.
(a) Optional Basis of Borrowing. Each Loan shall bear
interest for each day until due on a single basis selected by the
Company from among the Interest Rate Options set forth below, it
being understood that subject to the provisions of this Agreement
all Loans within a single Set of Loans shall be subject to the
same Option, but the Company may select different Options to
apply simultaneously to different Sets of Loans:
(i) Base Rate Option: A rate per annum (computed on the
basis of a year of 365 or 366 days, as the case may be) for each
day equal to the Base Rate for such day, such interest rate to
change automatically from time to time effective as of the
effective date of each change in the Base Rate (the Base Rate
Option ). "Base Rate", as used herein, shall mean an interest
rate per annum equal to the Federal Funds Effective Rate for such
day plus .45%. "Federal Funds Effective Rate" for any day, as
used herein, shall mean the rate per annum (rounded upward to the
nearest 1/100 of 1%) determined by the Agent (which determination
shall be conclusive) to be the rate per annum announced by the
Federal Reserve Bank of New York (or any successor) on such day
as being the weighted average of the rates on overnight Federal
funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal
Reserve Bank (or any successor) in substantially the same manner
as such average it refers to as the "Federal Funds Effective
Rate" as of the date of this Agreement; provided, if such Federal
Reserve Bank (or its successor) does not announce such rate on
any day under circumstances that are temporary, the "Federal
Funds Effective Rate" for such day shall be the Federal Funds
Effective Rate for the last day on which such rate was announced.
The Agent shall promptly notify the Company and each Bank of each
change in the Base Rate and the effective date thereof, but any
failure of the Agent to so notify shall not relieve the Company
of its obligations hereunder or under any Note.
(ii) Euro-Rate Option: A rate per annum (based on a year of 360
days and actual days elapsed) for each day equal to the Euro-Rate
for such day plus .45% (the Euro-Rate Option). "Euro-Rate" for
any day, as used herein, shall mean for each Set of Euro-Rate
Loans corresponding to a proposed or existing Euro-Rate Interest
Period, the rate per annum determined by the Agent by dividing
(the resulting quotient to be rounded upward to the nearest 1/100
of 1%) (x) the rate of interest (which shall be the same for
each day in such Euro-Rate Interest Period) determined in good
faith by the Agent (which determination shall be conclusive) to
be the average of the rates per annum for deposits in Dollars
offered to prime banks in the London interbank market at
approximately 11:00 o'clock a.m., London time, two London
Business Days prior to the first day of such Euro-Rate Interest
Period for delivery on the first day of such Euro-Rate Interest
Period in amounts comparable to the amount of such Set of Euro-
Rate Loans and for a period comparable to such Euro-Rate Interest
Period by (y) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage as defined below.
The "Euro-Rate" described in this Section 2.07(a)(ii) may
also be expressed by the following formula:
[average of the rates offered to prime]
[banks in the London interbank market]
Euro-Rate = [determined by the Bank per subsection (ii)]
[of this Section 2.04(a)]
[1.00 - Euro-Rate Reserve Percentage]
The "Euro-Rate Reserve Percentage" for any day is the
maximum effective percentage (expressed as a decimal fraction,
rounded upward to the nearest 1/100 of 1%), as determined in good
faith by the Agent (which determination shall be conclusive),
which is in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without
limitation, supplemental, marginal and emergency reserve
requirements) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency Liabilities") of a member bank in
such System but only to the extent actually incurred by any Bank.
The Euro-Rate shall be adjusted automatically as of the effective
date of each change in the Euro-Rate Reserve Percentage.
The Agent shall give prompt notice to the Company and the Banks
by telephone, telecopier or facsimile of the Euro-Rate so offered
or adjusted from time to time and the Agent's determination
thereof shall be conclusive in the absence of manifest error.
(b) Interest Periods. At any time when the Company shall
request the Banks to make a Set of Loans, the Company shall
specify the term of such Loans (the "Interest Period" of each
such Set of Loans) within the limitations set forth in the chart
below:
Type of Loan Available Interest Periods
Base Rate Any number of days not exceeding the
number of days remaining until the Expiration
Date ("Base Rate Interest Period")
Euro-Rate One, two, three or six months ("Euro-
Rate Interest Period")
provided, that:
(i) Each Base Rate Interest Period beginning before the
Expiration Date, which would otherwise end after the Expiration
Date, shall instead end on the Expiration Date;
(ii) Each Base Rate Interest Period which would otherwise
end on a day which is not a Business Day shall be extended to the
next succeeding Business Day unless such Business Day is after
the Expiration Date in which event such Base Rate Interest Period
shall end on the immediately preceding Business Day;
(iii) Each Euro-Rate Interest Period shall begin on a
London Business Day, and the duration of each Euro-Rate Interest
Period shall be determined in accordance with the definition of
the term "month" herein;
(iv) Notwithstanding any other provision of this Agreement,
the Company may not fix an Interest Period which would end after
the Expiration Date;
The principal amount of each Loan shall be due and payable on the
last day of the Interest Period corresponding thereto (the
"Maturity Date" therefor).
(c) Transactional Amounts. Every request for a Set of
Loans and every prepayment of a Set of Loans shall be in a
principal amount such that after giving effect thereto the
principal amount of such Set of Loans, as the case may be, shall
be as set forth in the table below:
Type of Loan Allowable Principal Amounts
Base Rate $250,000 plus an integral multiple of $100,000
Euro-Rate $500,000 plus an integral multiple of $100,000
(d) Interest After Maturity. After the principal amount of
any Loan shall have become due (by acceleration or otherwise),
such Loan shall bear interest for each day until paid (before and
after judgment) at a rate per annum (based on a year of 365 or
366 days, as the case may be) equal to the Prime Rate plus 2%,
such interest rate to change automatically from time to time
effective as of the effective date of each change in such Prime
Rate.
(e) Euro-Rate Unascertainable; Impracticability. If
(i) on any date on which a Euro-Rate would otherwise be set
either the Agent (in the case of A or B below) or any Bank (in
the case of C below) shall have in good faith determined (which
determination shall be conclusive) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate,
(B) a contingency has occurred which materially and
adversely affects the London interbank market, or
(C) the effective cost to such Bank of funding a
proposed Euro-Rate Loan from a Corresponding Source of Funds
shall exceed the Euro-Rate applicable to such Loan, or
(ii) at any time any Bank shall have determined in good
faith (which determination shall be conclusive) that the making,
maintenance or funding of any Euro-Rate Loan has been made
impracticable or unlawful by compliance by such Bank or a
Notional Euro-Rate Funding Office of such Bank in good faith with
any Law or guideline or interpretation or administration thereof
by an Official Body charged with the interpretation or
administration thereof or with any request or directive of any
such Official Body (whether or not having the force of law);
then, and in any such event, such Bank, may notify the Agent and
the Agent shall notify the Company of such determination. Upon
such date as shall be specified in such notice (which shall not
be earlier than the date such notice is given to the Company) the
obligation of the Banks to allow the Company to select the Euro-
Rate Option shall be suspended until the Agent shall have later
notified the Company of such Bank's determination, (which
determination shall be conclusive) that the circumstances giving
rise to such previous determination no longer exist.
If the Agent notifies the Company of a determination under
subsection (ii) of this Section 2.07(e), all Euro-Rate Loans then
outstanding shall be due and payable on the date specified in
such notice. Absent contrary notice from the Company by 12:00
o'clock noon, on such specified date, the Company shall be deemed
to have given the Agent notice at such time pursuant to Section
2.04(a) hereof to the effect that the Company requests a Set of
Loans hereunder at the Base Rate Option in principal amount equal
to the principal amount becoming due and payable pursuant to the
preceding sentence
If at the time a Bank makes a determination under this
Section 2.07(e) and the Company has previously notified the Agent
that it wishes the Banks to make a Set of Euro-Rate Loans but
such Loans have not yet been made, such notification shall be
deemed to request the making of Base Rate Loans instead of Euro-
Rate Loans or the application of the Base Rate Option instead of
the Euro-Rate Option, as the case may be.
2.08. Prepayments. The Company shall have the right at its
option from time to time to prepay any Set of Loans in whole or
in part upon at least: (i) one Business Day prior written notice
to the Agent in the case of any Set of Base Rate Loans bearing
interest at the Base Rate Option; and (ii) subject to the
provisions of Section 2.11(b) hereof, five Business Days' prior
written notice to the Agent in the case of any Set of Euro-Rate
Loans bearing interest at the Euro-Rate Option. Whenever the
Company desires to prepay any part of any Set of Loans, it shall
provide the foregoing notice to the Agent setting forth the
following information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The Maturity Date applicable thereto, principal amount
of, and Interest Rate Option applicable to, the Set of Loans to
be prepaid; and
(c) The principal amount selected in accordance with
Section 2.07(c) hereof to be prepaid.
Upon receiving the foregoing notice, the Agent shall promptly
advise each Bank of the information set forth therein and on the
date specified in such notice the principal amount of the Set of
Loans specified in such notice, together with interest on such
principal amount to such date, shall be due and payable.
2.09. Interest Payment Dates. Interest on each Set of Base
Rate Loans shall be due and payable on the Maturity Date thereof
and, if the corresponding Base Rate Interest Period is longer
than 90 days, also every 90th day during such Interest Period.
Interest on each Set of Euro-Rate Loans shall be due and payable
on the Maturity Date thereof and, if the corresponding Euro-Rate
Interest Period is longer than three months, also every third
month during such Interest Period or, in the case of any
prepayment, on the date specified for such prepayment pursuant to
Section 2.08(a) hereof; or specified for a required prepayment of
Euro-Rate Loans in a notice to be provided pursuant to Section
2.07(e) hereof. After maturity of any Set of Loans (by
acceleration or otherwise), interest on such Loans shall be due
and payable on demand.
2.10. Payments. All payments and prepayments to be made in
respect of principal, interest, Facility Fees or other amounts
due from the Company hereunder or under any Note shall be payable
at 12:00 o'clock noon, on the day when due without presentment,
demand, protest or notice of any kind, all of which are hereby
expressly waived, and an action therefore shall immediately
accrue. Such payments shall be made to the Agent at its Office
in Dollars in funds immediately available at such Office and
shall be promptly distributed by the Agent ratably to each Bank.
All such payments shall be made without setoff, counterclaim or
other deduction of any nature, except only that the principal
amount of any Loan then due by the Company to any Bank shall
automatically be set-off against the principal amount of any Loan
then due from such Bank to the Company hereunder. To the extent
permitted by law, after there shall have become due (by
acceleration or otherwise) interest, Facility Fee, or any other
amounts due from the Company hereunder or under the Notes
(excluding overdue principal, which shall bear interest as
described in Section 2.07(d) hereof, but including interest
payable under this Section 2.10), such amounts shall bear
interest for each day until paid (before and after judgment),
payable on demand, at a rate per annum (based on a year of 365 or
366 days, as the case may be) 2% above the then current Prime
Rate, such interest rate to change automatically from time to
time effective as of the effective date of each change in the
Prime Rate.
2.11. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From Taxes,
Reserves, Capital Adequacy Requirements, Expenses, etc. If any
Law or guideline or interpretation or application thereof by any
Official Body charged with the interpretation or administration
thereof or compliance with any request or directive of any
Official Body (whether or not having the force of law) now
existing or hereafter adopted:
(i) subjects any Bank or any Notional Euro-Rate Funding
Office of such Bank to any tax not applicable on the date hereof
or changes the basis of taxation with respect to this Agreement
or any Note held by such Bank, the Loans or payments by the
Company of principal, interest, Facility Fee or other amounts due
from the Company hereunder or under any such Note (except for
taxes on the overall net income of such Bank or such Notional
Euro-Rate Funding Office imposed by the jurisdiction in which the
Bank's principal office or Notional Euro-Rate Funding Office is
located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against assets held by,
credit extended by, deposits with or for the account of, or other
acquisition of funds by, any Bank or any Notional Euro-Rate
Funding Office of such Bank (other than requirements expressly
included herein in the determination of the Euro-Rate hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against Assets (funded or
contingent) of, or credit or commitments to extend credit by, any
Bank or any Notional Euro-Rate Funding Office, or (b) otherwise
applicable to the obligations of any Bank or Notional Euro-Rate
Funding Office under this Agreement, or
(iv) imposes upon any Bank or any Notional Euro-Rate
Funding Office of such Bank any other condition or expense with
respect to this Agreement, or the Note held by such Bank or its
making, maintenance or funding of any Loans;
and the result of any of the foregoing is to increase the cost
to, reduce the income receivable by, or impose any expense
(including loss of margin) upon such Bank or any Notional Euro-
Rate Funding Office of such Bank with respect to this Agreement
or the Note held by such Bank or the making, maintenance or
funding of any part of any Loan or, in the case of any capital
adequacy or similar requirement, to have the effect of reducing
the return on any Bank's capital, (taking into account such
Bank's policies with respect to capital adequacy) by an amount
which such Bank deems to be material (such Bank being deemed for
this purpose to have made, maintained or funded each Euro-Rate
Loan from a Corresponding Source of Funds), such Bank shall from
time to time notify the Agent and the Agent shall notify the
Company of the amount determined (using any averaging and
attribution methods) by such Bank to be necessary to compensate
such Bank or such Notional Euro-Rate Funding Office for such
increase in cost, reduction in income or additional expense, such
notice to include such Bank's calculation, in reasonable detail,
as to the amount of its claim and such determination to be
conclusive absent manifest error. Such amount shall be due and
payable by the Company to such Bank ten Business Days after such
notice is given.
(b) Indemnity. In addition to the compensation required by
subsection (a) of this Section 2.11, the Company shall indemnify
each Bank against any loss or reasonable expense (including loss
of margin but excluding any other consequential or incidental
damages) which such Bank has sustained or incurred as a
consequence of any
(i) payment or prepayment of any part of any Euro-Rate Loan
on a day other than the last day of the corresponding Interest
Period (whether or not such payment or prepayment is mandatory
and whether or not such payment or prepayment is then due),
(ii) attempt by the Company to revoke (expressly, by
later inconsistent notices or otherwise) in whole or part any
notice stated herein to be irrevocable (the Banks having in their
discretion the options (A) to give effect to any such attempted
revocation and obtain indemnity under this Section 2.11(b) or (B)
to treat such attempted revocation as having no force or effect,
as if never made), or
(iii) default by the Company in the performance or
observance of any covenant or condition contained in this
Agreement, or the Notes, including without limitation any failure
of the Company to pay when due (by acceleration or otherwise) any
principal, interest, Facility Fee or any other amount due
hereunder or under any such note.
If a Bank sustains or incurs any such loss or expense it shall,
without unreasonable delay, notify the Agent and the Agent shall,
as soon as practicable, notify the Company of the amount
determined in good faith by such Bank to be necessary to
indemnify the Bank for such loss or expense (the Bank being
deemed for this purpose to have made, maintained or funded each
Euro-Rate Loan from a Corresponding Source of Funds), such notice
to include the Bank's calculation in reasonable detail, as to the
amount of its claim and such determination to be conclusive
absent manifest error. Such amount shall be due and payable by
the Company to such Bank ten Business Days after such notice is
given. As to any Bank, the indemnity set forth herein shall not
apply to the extent caused by the willful misconduct or
negligence of such Bank.
2.12. Taxes.
(a) Payments Net of Taxes. All payments made by the
Company under this Agreement shall be made free and clear of, and
without reduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any
Official Body, and all liabilities with respect thereto,
excluding
(i) in the case of the Agent and each Bank, income or
franchise taxes imposed on the Agent or such Bank by the
jurisdiction under the laws of which the Agent or such Bank is
organized or any political subdivision or taxing authority
thereof or therein or as a result of a connection between such
Bank and any jurisdiction other than a connection resulting
solely from this Agreement and the transactions contemplated
hereby, and
(ii) in the case of each Bank, income or franchise taxes
imposed by any jurisdiction in which such Bank's lending offices
which made or book Loans are located or any political subdivision
or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions,
charges or withholdings being hereinafter called "Taxes"). If
any Taxes are required to be withheld or deducted from any
amounts payable to the Agent or any Bank under this Agreement,
the Company shall pay the relevant amount of such Taxes and the
amounts so payable to the Agent or such Bank shall be increased
to the extent necessary to yield to the Agent or such Bank (after
payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this
Agreement. Whenever any Taxes are paid by the Company with
respect to payments made in connection with this Agreement, as
promptly as possible thereafter, the Company shall send to the
Agent for its own account or for the account of such Bank, as the
case may be, a certified copy of an original official receipt
received by the Company showing payment thereof.
(b) Indemnity. The Company hereby indemnifies the Agent
and each of the Banks for the full amount of all Taxes
attributable to payments by or on behalf of the Company
hereunder, any Taxes paid by the Agent or such Bank, as the case
may be, any present or future claims, liabilities or losses with
respect to or resulting from any omission to pay or delay in
paying any Taxes (including any incremental Taxes, interest or
penalties that may become payable by the Agent or such Bank as a
result of any failure to pay such Taxes), whether or not such
Taxes were correctly or legally asserted. Such indemnification
shall be made within 30 days from the date such Bank or the
Agent, as the case may be, makes written demand therefor.
(c) Withholding and Backup Withholding. Each Bank that is
incorporated or organized under the laws of any jurisdiction
other than the United States or any State thereof agrees that, on
or prior to the date any payment is due to be made to it
hereunder or under any other Loan Document, it will furnish to
the Company and the Agent
(i) two valid, duly completed copies of United States
Internal Revenue Service Form 4224 or United States Internal
Revenue Form 1001 or successor applicable form, as the case may
be, certifying in each case that such Bank is entitled to receive
payments under this Agreement without deduction or withholding of
any United States federal income taxes and
(ii) a valid, duly completed Internal Revenue Service Form
W-8 or W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding tax.
Each Bank which so delivers to the Company and the Agent a Form
1001 or 4224 and From W-8 or W-9, or successor applicable forms
agrees to deliver to the Company and the Agent two further copies
of the said Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms, or other manner of certification, as the case
may be, on or before the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a
condition to obtaining an exemption from withholding tax, or
after the occurrence of any event requiring a change in the most
recent form previously delivered by it, and such extensions or
renewals thereof as may reasonably be requested by the Company
and the Agent, certifying in the case of a Form 1001 or Form 4224
that such Bank is entitled to receive payments under this
Agreement or any other Loan Document without deduction or
withholding of any United States federal income taxes, unless in
any such cases an event (including any changes in Law) has
occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and
delivering any such letter or form with respect to it and such
Bank advises the Company and the Agent that it is not capable of
receiving payments without any deduction or withholding of United
States federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding
tax.
2.13. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Bank shall have the right from
time to time, prospectively or retrospectively, without notice to
the Company, to deem any branch, Subsidiary or Affiliate of such
Bank to have made, maintained or funded any of such Bank's Euro-
Rate Loans at any time. Any branch, Subsidiary or Affiliate so
deemed shall be known as a "Notional Euro-Rate Funding Office".
The Bank shall deem any of its Euro-Rate Loans or the funding
therefor to have been transferred to a different Notional Euro-
Rate Funding Office if such transfer would avoid or cure an event
or condition described in Section 2.07(e) hereof or would lessen
compensation payable by the Company under Section 2.11 hereof,
and if the Bank determines in its sole discretion that such
transfer would be practicable and would not have a material
adverse effect on such Loans, the Bank or any Notional Euro-Rate
Funding Office (it being assumed for purposes of such
determination that each such Euro-Rate Loan is actually made or
maintained by or funded through the corresponding Notional Euro-
Rate Funding Office). Notional Euro-Rate Funding Offices may be
selected by a Bank without regard to the Bank's actual methods of
making, maintaining or funding Loans or any sources of funding
actually used by or available to the Bank.
(b) Actual Funding. Each Bank shall have the right from
time to time to make or maintain any Euro-Rate Loan by arranging
for a branch, Subsidiary or Affiliate of such Bank to make or
maintain such Loan. Each Bank shall have the right to (i) hold
any applicable Note payable to its order for the benefit and
account of such branch, Subsidiary or Affiliate or (ii) request
the Company to issue one or more promissory notes in the
principal amount of such Euro-Rate Loan in substantially the form
attached hereto as Exhibit A, with the blanks appropriately
filled, payable to such branch, Subsidiary or Affiliate and with
appropriate changes reflecting that the holder thereof is not
obligated to make any additional Loans to the Company. The
Company agrees to comply promptly with any request under
subsection (ii) of this Section 2.13(b). If such Bank causes a
branch, Subsidiary or Affiliate to make or maintain any Loan
hereunder, all terms and conditions of this Agreement shall,
except where the context clearly requires otherwise, be
applicable to such Loan and to any Note payable to the order of
such branch, Subsidiary or Affiliate to the same extent as if
such Loan were made or maintained by the Bank and such note were
a Note payable to the Bank's order.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Agent and each
Bank as follows:
3.01. Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania. The Company
and each Subsidiary is duly qualified to do business as a foreign
corporation and is in good standing in all jurisdictions in which
its ownership of property or the nature of its business
activities or both makes such qualification necessary or
advisable and where failure to so qualify could have a Material
Adverse Effect.
3.02. Corporate Power and Authorization. The Company has
corporate power and authority to make and carry out this
Agreement, to make the borrowings provided for herein, to take
all action contemplated hereby or required hereunder, to execute
and deliver this Agreement, the Notes and the other Loan
Documents and to perform its obligations hereunder and under the
Notes; and all such action has been duly authorized by all
necessary corporate proceedings on its part.
3.03. Audited Annual Financial Statements. The Company has
heretofore furnished to the Agent and each Bank consolidated
balance sheets of the Company and its Consolidated Subsidiaries
as of December 31, 1997 and the related consolidated statements
of income, cash flows and changes in stockholders' equity for the
fiscal years then ended, as examined and reported on by Price
Waterhouse, LLC, independent certified public accountants for the
Company, who delivered an unqualified opinion in respect thereof.
Such financial statements (including the notes thereto) present
fairly the financial condition of the Company and its
Consolidated Subsidiaries as of the end of such fiscal year and
the results of their operations and their cash flows for the
fiscal year then ended, all in conformity with GAAP.
3.04. Interim Financial Statements. The Company has
heretofore furnished to the Agent and each Bank unaudited interim
consolidated balance sheets of the Company and its Consolidated
Subsidiaries as of June 30, 1998, together with the related
unaudited consolidated statements of income for the applicable
fiscal periods ending on each such date. Such financial
statements (including the notes thereto) present fairly the
financial condition of the Company and its Consolidated
Subsidiaries as of the end of each such fiscal quarter and the
results of their operations for the fiscal periods then ended,
all in conformity with GAAP subject to normal year-end
adjustments.
3.05. [Reserved]
3.06. Absence of Adverse Changes. Since December 31, 1997,
there has been no material adverse change in the business,
performance, operations, or condition (financial or otherwise) of
the Company or the Guarantors individually, or the Company and
its Subsidiaries taken as a whole.
3.07. Litigation. Except as otherwise disclosed in writing
by the Company to the Agent, there is no litigation or
governmental proceeding by or against the Company, or any other
Subsidiary of the Company pending or, to the knowledge of the
Company, after due inquiry, threatened, which in the reasonable
judgment of the Company, and if determined adversely, either
individually or in the aggregate is likely to have any Material
Adverse Effect ..
3.08. No Conflicting Laws or Agreements; Consents and
Approvals.
(a) Neither the execution and delivery of this Agreement,
the consummation of the transactions herein contemplated nor
compliance with the terms and provisions hereof, or of the Notes,
or of any other Loan Document will conflict with or result in a
breach of any of the terms, conditions or provisions of the
articles of incorporation, by-laws or other constituent documents
of the Company or of any of its Subsidiaries or of any Law or of
any material agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound or to which any of them is subject, or
constitute a default thereunder or result in the creation or
imposition of any Lien of any nature whatsoever upon any of the
Assets or property of the Company or any of its Subsidiaries
pursuant to the terms of any such agreement or instrument.
(b) No authorization, consent, approval, license, exemption
or other action by, and no registration, qualification,
designation, declaration or filing with, any Official Body is or
will be necessary or advisable in connection with execution and
delivery of this Agreement or of the Notes, consummation of the
transactions herein or therein contemplated, or the performance
of or compliance with the terms and conditions hereof or thereof.
3.09. Execution and Binding Effect. This Agreement has
been duly and validly executed and delivered by the Company.
This Agreement constitutes, and the Notes, and other Loan
Documents when duly executed and delivered by the Company
pursuant to the provisions hereof will constitute, legal, valid
and binding obligations of the Company, enforceable in accordance
with the terms thereof except, as to the enforcement of remedies,
for limitations imposed by bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting the
enforcement of creditors' rights generally or by Laws limiting
the right of specific performance.
3.10. ERISA Compliance. Each ERISA Group Member has
fulfilled its obligations under the minimum funding standards of
ERISA and the Code in all material respects with respect to each
Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with
respect to each Plan. No ERISA Group Member has (i) sought a
waiver of the minimum funding standard under Section 412 of the
Code in respect of any Plan, (ii) failed to make any contribution
or payment to any Plan, or made any amendment to any Plan which
has resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Code or
(iii) incurred any material liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section
4007 of ERISA or for the payment of benefits in the ordinary
course.
3.11. Taxes. All tax and information returns required to
be filed by the Company or any Subsidiary of the Company have
been properly prepared, executed and filed. All taxes,
assessments, fees and other governmental charges upon the Company
and its Subsidiaries or upon their respective properties, incomes
or sales which are due and payable have been paid. The reserves
and provisions for taxes on the books of the Company and its
Subsidiaries are adequate for all open years and for their
current fiscal period.
3.12. Regulation U. The Company will make no borrowing
hereunder for the purpose of buying or carrying any "margin
stock" as such term is used in Regulation U of the Board of
Governors of the Federal Reserve System.
3.13. Environmental Matters. (a) The Company and each of
its Environmental Affiliates is and has been in full compliance
with all applicable Environmental Laws, except for matters which,
individually or in the aggregate, are not likely to have a
Material Adverse Effect. There are no circumstances that may
prevent or interfere with such compliance in the future.
(b) To the best of the knowledge of all Responsible
Officers, the Company and each of its Environmental Affiliates
have all Environmental Approvals necessary or desirable for the
ownership and operation of their respective properties,
facilities and businesses as presently owned and operated and as
presently proposed to be owned and operated, except for matters
which, individually or in the aggregate, are not likely to have a
Material Adverse Effect.
(c) To the best of the knowledge of all Responsible
Officers, there is no Environmental Claim pending or threatened,
and there are no past or present acts, omissions, events or
circumstances that could form the basis of any Environmental
Claim against the Company or any of its Environmental Affiliates,
except for matters which, if adversely decided, individually or
in the aggregate, are not likely to have a Material Adverse
Effect.
(d) To the best of the knowledge of all Responsible
Officers hereof, no facility or property now or previously owned,
operated or leased by the Company or any of its Environmental
Affiliates is an Environmental Cleanup Site and neither the
Company nor any of its Environmental Affiliates has stored,
treated, transported, handled, disposed of, or arranged for the
disposal of any Environmental Concern Materials at, on, under,
above, or adjacent to any Environmental Cleanup Site and no Lien
(including without limitation any cost-reimbursement claim of any
Official Body) exists, and no condition exists which is likely to
result in the filing of a Lien, against any property of the
Company or any of its Environmental Affiliates, under any
Environmental Law except for any such matters which individually
or in the aggregate, are not likely to have a Material Adverse
Effect
(e) To the best of the knowledge of all Responsible
Officers, there are no facts, circumstances or conditions that
reasonably could be expected to restrict or encumber under any
Environmental Law the ownership, occupancy, use or
transferability of facilities or properties now or previously
owned, operated or leased by the Company or any of its
Environmental Affiliates except for any such matters which.
individually or in the aggregate, are not likely to have a
Material Adverse Effect.
3.14. Investment Company; Bank Holding Company; Public
Utility Holding Company. The Company: (a) is not and is not
controlled by an investment company within the meaning of the
Investment Company Act of 1940, as amended; (b) is not a
registered bank holding company under the Bank Holding Company
Act of 1956, as amended; and (c) is not a "holding company" or an
"affiliate" of a "holding company" or a "subsidiary company" of a
"holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
3.15. Absence of Undisclosed Liabilities. Neither the
Company nor any Subsidiary of the Company has any liability or
obligation of any nature whatever (whether absolute, accrued,
contingent or otherwise, whether or not due), forward or long-
term commitments or unrealized or anticipated losses from
unfavorable commitments, except (a) as disclosed in the financial
statements referred to in Sections 3.03 and 3.04 hereof, or (b)
matters that, individually or in the aggregate, could not have a
Material Adverse Effect, and (c) liabilities, obligations,
commitments and losses incurred after December 31, 1997 in the
ordinary course of business and consistent with past practices.
3.16. Absence of Events of Default. No event has occurred
and is continuing and no condition exists which constitutes an
Event of Default or a Potential Default.
3.17. Title to Property. The Company and each Subsidiary
of the Company has good and marketable title in fee simple to all
real property owned or purported to be owned by it and good title
to all other property of whatever nature owned or purported to be
owned by it, including but not limited to all property reflected
in the most recent audited balance sheet referred to in Section
3.03 hereof or submitted pursuant to Section 5.01(a) hereof, as
the case may be, except as sold or otherwise disposed of in the
ordinary course of business after the date of such balance sheet
or, after the Closing Date, as otherwise permitted hereunder, in
each case free and clear of all Liens, other than Permitted
Liens.
3.18. Accurate and Complete Disclosure. The Company has
disclosed to the Banks in writing every fact which materially and
adversely affects, or which so far as the Company can reasonably
foresee would materially and adversely affect, (whether by virtue
of such fact's impact upon the business, operations, performance
or condition, financial or otherwise, of the Company or any
Subsidiary or otherwise) the ability of the Company to perform
its obligations under this Agreement, the Notes, and the other
Loan Documents.
3.19. Year 2000 Compliance. The Company shall use its best
efforts to cause any reprogramming required to permit the proper
functioning, before, during and following the year 2000, of (a)
computer systems of the Company and (b) equipment containing
embedded microchips (including systems and equipment supplied by
others or with which the systems of the Company interface), and
the testing of such systems and equipment, as so reprogrammed, to
be completed in all material respects by September 30, 1999. The
cost to the Company of such reprogramming and testing and of
reasonably foreseeable consequences of year 2000 to the Company
(including (i) the cost of reprogramming errors and (ii) the
failure of others systems or equipment) will not have a
materially adverse effect on the business, operations, condition
(financial or otherwise) or prospects of the Company or on the
ability of the Company to perform its obligations pursuant to
this Agreement.
3.20. Guarantors. The Company directly or indirectly owns
100% of the issued and outstanding capital stock of each of the
Guarantors.
ARTICLE IV
CONDITIONS OF LENDING
4.01. Initial Loans. The obligation of each Bank to make
initial Loans hereunder is subject to the satisfaction of the
following conditions precedent in addition to the conditions set
forth in Section 4.02 hereof
(a) Loan Documents. The Agent shall have received (i) an
executed counterpart of this Agreement for each Bank; (ii)
executed Notes; (iii) executed Guaranties, each duly executed by
the Company (or, in the case of the Guaranties, the Guarantors),
all conforming to the requirements hereof.
(b) Corporate Proceedings. The Agent shall have received,
with a counterpart for each Bank, certificates by the Secretary
or Assistant Secretary of the Company and each Guarantor dated as
of the Closing Date as to (i) true copies of the articles of
incorporation and by-laws (or other constituent documents) of the
Company and each Guarantor in effect on such date which shall be
certified to be true, correct and complete by such Secretary not
more than 30 days before the Closing Date, (ii) true copies of
all corporate action taken by the Company and each Guarantor
relative to this Agreement and the Notes in the case of the
Company, and relative to the Guaranties in the case of the
Guarantors, and (iii) the authority, incumbency and signature of
the respective officers of the Company and each Guarantor
executing this Agreement and the Notes (in the case of the
Company) and the Guaranties (in the case of the Guarantors) and
of the Responsible Officers authorized to sign any certificate or
other document required to be provided on behalf of the Company
pursuant hereto, all together with satisfactory evidence of the
incumbency of such Secretary or Assistant Secretary.
(c) Good Standing Certificates. The Agent shall have
received, with a copy for each Bank, certificates from the
appropriate Secretaries of State or other applicable Official
Body dated not more than 30 days before the Closing Date showing
the good standing of the Company in its state of incorporation or
jurisdiction of organization.
(d) Financial Statements. The Agent shall have received,
with a counterpart for each Bank, copies of the consolidated
financial statements and interim financial statements, referred
to in Sections 3.03 and 3.04 hereof respectively.
(e) Opinion of Counsel. There shall have been delivered to
the Agent a written opinion addressed to the Agent and each Bank,
dated the Closing Date of Robert F. Schultz, Counsel to the
Company, in form and substance satisfactory to the Agent and each
Bank and with a signed counterpart for each Bank, (i) as to the
matters referred to in Sections 3.01, 3.02, 3.07, 3.08, 3.09 and
3.20, except that as to the matters referred to in Section 3.08
such opinion may be limited to the knowledge of such counsel
after due inquiry, and (ii) as to such other matters incident to
the transactions contemplated by this Agreement as the Agent or
any Bank may reasonably request.
(f) Officers' Certificates. The Agent shall have received,
with an executed counterpart for each Bank, certificates from
Responsible Officers as to such matters as the Agent may
reasonably request.
(g) Fees, Expenses, etc. All fees, expenses and other
compensation required to be paid to the Agent or to the Agent for
the account of the Banks on or prior to the Closing Date pursuant
hereto or pursuant to any other written agreements shall have
been paid or received by the Agent.
(h) Details, Proceedings and Documents. All legal details
and proceedings in connection with the transactions contemplated
by this Agreement shall be satisfactory to the Agent, and the
Agent and the Banks shall have received all such counterpart
originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and
substance satisfactory to them, as the Agent or any Bank may from
time to time reasonably request.
4.02. Conditions to all Loans. The obligation of each Bank
to make each and any Loan (including initial Loans), is subject
to the performance by the Company of its obligations to be
performed hereunder on or before the date of such Loan,
satisfaction of the conditions set forth in Section 4.01 hereof,
and the satisfaction of the following further conditions
precedent on and as of the date of each Loan hereunder.
(a) Notice. Standard Notice of such Loan shall have been
given by the Company to the Agent as provided in Section 2.04
hereof.
(b) Representations and Warranties. The representations
and warranties contained in Article III hereof shall be true and
correct in all material respects on and as of the date of each
Loan, as if made on and as of such date, both before and after
giving effect to the Loans requested to be made on such date.
(c) No Defaults. No Event of Default or Potential Default
shall have occurred and be continuing on such date or after
giving effect to the Loans requested to be made on such date.
Each request by the Company for any Loan shall constitute a
representation and warranty by the Company that the conditions
set forth in this Section 4.02 have been satisfied as of the date
of such request. Failure of the Agent to receive notice from the
Company to the contrary before such Loan is made shall constitute
a further representation and warranty by the Company that the
conditions referred to in this Section 4.02 have been satisfied
as of the date such Loan is made.
ARTICLE V
AFFIRMATIVE COVENANTS
The Company hereby covenants to the Agent and each Bank as
follows:
5.01. Basic Reporting Requirements.
(a) Annual Audit Reports. As soon as practicable, and in
any event within 120 days after the close of each fiscal year of
the Company, the Company shall furnish to the Agent, with a copy
for each Bank, consolidated statements of income, cash flows and
changes in stockholders' equity of the Company and its
Consolidated Subsidiaries for such fiscal year and a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as
of the close of such fiscal year, and notes to each, all in
reasonable detail, setting forth in comparative form the
corresponding figures for the preceding fiscal year. All such
financial statements shall be accompanied by an opinion of
independent certified public accountants of recognized national
standing selected by the Company. Such opinion shall be free of
exceptions or qualifications of "going concern" or like nature or
which relate to a limited scope of examination. Such opinion in
any event shall contain a written statement of such accountants
substantially to the effect that (x) such accountants examined
such financial statements in accordance with generally accepted
auditing standards and accordingly made such tests of accounting
records and such other auditing procedures as such accountants
considered necessary in the circumstances and (y) in the opinion
of such accountants such financial statements present fairly the
financial position of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the results of
their operations and their cash flows and changes in
stockholders' equity for such fiscal year, in conformity with
GAAP.
(b) Quarterly Consolidated Reports. As soon as
practicable, and in any event within 45 days after the close of
each of the first three fiscal quarters of each fiscal year of
the Company, the Company shall furnish to the Agent, with a copy
for each Bank unaudited consolidated statements of income of the
Company and its Consolidated Subsidiaries for such fiscal quarter
and for the period from the beginning of such fiscal year to the
end of such fiscal quarter and an unaudited consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of the
close of such fiscal quarter and notes to each, all in reasonable
detail, setting forth in comparative form the corresponding
figures for the same periods or as of the same date during the
preceding fiscal year (except for the consolidated balance sheet
which shall set forth in comparative form the corresponding
balance sheet as of the prior fiscal year end). Such financial
statements shall be certified on behalf of the Company by a
Responsible Officer of the Company as presenting fairly the
financial position of the Company and its Consolidated
Subsidiaries as of the end of such fiscal quarter and the results
of their operations and their cash flows and changes in
stockholders' equity for such fiscal year, in conformity with
GAAP, subject to normal and recurring year-end audit adjustments.
(c) Guarantor Financial Information. On an annual basis,
together with the financial information required pursuant to 5.01
(a) hereof, the Company shall furnish or cause to be furnished to
the Agent, with a copy for each Bank, the unaudited
unconsolidated balance sheet of Union Electric Steel Corporation
certified by a Responsible Officer as having been prepared in
accordance with GAAP.
(d) [Reserved]
(e) Compliance Certificates. Within 120 days after the end
of each fiscal year of the Company and within 45 days after the
end of each of the first three fiscal quarters of each fiscal
year (and in any event concurrently with the delivery of the
financial statements referred to in Subsections (a), (b), (c) and
(d) of this Section 5.01) the Company shall deliver to the Agent,
with a copy for each Bank, a compliance certificate dated as of
the end of such fiscal year or quarter, duly executed on behalf
of the Company by a Responsible Officer of the Company in form
acceptable to the Agent: (i) stating that, as of the date
thereof, no Event of Default or Potential Default has occurred
and is continuing or exists, or, if any Event of Default or
Potential Default has occurred and is continuing or exists,
specifying in detail the nature and period of the existence
thereof and any action taken or contemplated to be taken by the
Company with respect thereto; (ii) stating that as of the date
thereof, the Company is in compliance with the provisions of
Section 6.01 hereof and providing in reasonable detail the
information and calculations necessary or, in the judgment of the
Agent, appropriate to establish compliance with Section 6.01
hereof; (iii) stating that the signer has personally reviewed
this Agreement and that such certificate is based on a reasonable
and appropriate examination made by or under the supervision of
the signer sufficient to assure that such certificate is complete
and accurate; and (iv) containing statements or certifications as
to such other matters as the Agent may from time to time
reasonably request.
(f) Further Information. The Company will promptly furnish
to the Agent, with a copy for each Bank, such other information
and in such form as the Agent or any Bank may reasonably request
from time to time.
(g) Notice of Certain Events. Promptly upon becoming aware
of any of the following (and in addition to any other requirement
of the Agent), the Company shall give the Agent notice thereof,
together with a written statement of a Responsible Officer of the
Company setting forth the details thereof and any action taken or
proposed to be taken by the Company with respect thereto (which
notice and/or written statement will be promptly communicated by
the Agent to each Bank:
(i) Any Event of Default or Potential Default.
(ii) Any pending or threatened action, suit, proceeding or
investigation by or before any Official Body against or affecting
the Company or any Subsidiary, except for matters that if
adversely decided, individually or in the aggregate, would not be
likely to have a Material Adverse Effect.
(iii) Any violation, breach or default by the Company or
any Subsidiary of the Company of or under any agreement or
instrument evidencing any Indebtedness of the Company or any such
Subsidiary or otherwise material to the business, operations,
performance or condition (financial or otherwise) of the Company
or any such Subsidiary and which is reasonably likely to have a
Material Adverse Effect..
(iv) Any Reportable Event with respect to a Plan or that
action has been or will be taken by any person to terminate any
Plan in accordance with Section 4041 of ERISA or otherwise, or
the Company, any ERISA group member or any administrator of a
Plan files a notice of intent to terminate a Plan with the
Internal Revenue Service or the PBGC; or files with the Internal
Revenue Service a request pursuant to Section 412 of the Code for
a variance from the minimum funding standard for a Plan; or files
a return with the Internal Revenue Service with respect to the
tax imposed under Section 4971(a) of the Code for failure to meet
the minimum funding standards established under Section 412 of
the Code for a Plan, the Company will furnish to the Agent a copy
of any notice, return or other written materials applicable or
required to be filed by the Company in respect thereof; the most
recent Annual Report (Form 5500 Series) and attachments thereto
for the Plan; the most recent actuarial report for the Plan; and
a written statement of a Responsible Officer of the Company
describing the event or the action taken and the reasons
therefor.
(v) Any Environmental Claim pending or threatened against
the Company or any Subsidiary of the Company or any of their
respective Environmental Affiliates, or any past or present acts,
omissions, events or circumstances (including but not limited to
any dumping, leaching, deposition, removal, abandonment, escape,
emission, discharge or release of any Environmental Concern at,
on or under any facility or property now or previously owned,
operated or leased by the Company or any Subsidiary or any of
their respective Environmental Affiliates) that could reasonably
form the basis of such Environmental Claim which, if adversely
determined, would be reasonably likely to have a Material Adverse
Effect.
(vi) Any change in any Law or regulation which could
reasonably be expected to have a Material Adverse Effect.
(h) Visitation; Verification. The Company shall, upon
reasonable notice and during normal business hours, permit such
persons as the Agent or any Bank may designate from time to time
to visit and inspect any of the properties of the Company and of
any Subsidiary, to examine their respective books and records and
take copies and extracts therefrom and to discuss their
respective affairs with their respective executive officers, and
independent accountants at such times and as often as the Agent
or any Bank may reasonably request. The Company hereby
authorizes such executive officers, and independent accountants
to discuss with the Agent or any Bank the affairs of the Company
and its Subsidiaries. The Agent and the Banks shall have the
right to examine and verify accounts, inventory and other
properties and liabilities of the Company and its Subsidiaries
from time to time, and the Company shall cooperate, and shall
cause each Subsidiary to cooperate, with the Agent and the Banks
in such verification.
5.02. Insurance. The Company shall, and shall cause each
Subsidiary to, maintain with financially sound and reputable
insurers insurance with respect to its properties and business
and against such liabilities, casualties and contingencies and of
such types and in such amounts as is customary in the case of
entities engaged in the same or similar businesses or having
similar properties similarly situated.
5.03. Payment of Taxes and Other Potential Charges and
Priority Claims. The Company shall, and shall cause each of its
Subsidiaries to, pay or discharge
(a) on or prior to the date on which penalties attach
thereto, all taxes, assessments and other governmental charges
imposed upon it or any of its properties;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and
other like Persons which, if unpaid, might result in the creation
of a Lien upon any such property; and
(c) on or prior to the date when due, all other lawful
claims which, if unpaid, might result in the creation of a Lien
upon any such property or which, if unpaid, might give rise to a
claim entitled to priority over general creditors of the Company
or such Subsidiary in a case under Title 11 (Bankruptcy) of the
United States Code, as amended, or pursuant to any other
applicable insolvency Law; provided, that unless and until
foreclosure, distraint, levy, sale or similar proceedings shall
have been commenced the Company or such Subsidiary need not pay
or discharge any such tax, assessment, charge or claim so long as
(x) the validity thereof is contested in good faith and by
appropriate proceedings diligently conducted, and (y) such
reserves or other appropriate provisions as may be required by
GAAP shall have been made therefor.
5.04. Preservation of Existence and Franchises. Without
limiting the right of the Company (or any of the Guarantors) to
merge or consolidate in accordance with and to the extent
permitted by Section 6.03 hereof, the Company shall and shall
cause each Guarantor to: (a) maintain its corporate existence and
good standing in full force and effect in its jurisdiction of
incorporation; (b) preserve, renew and keep in full force and
effect the franchises, licenses, charters and rights necessary
for the conduct of its business; and (c) qualify and remain
qualified as a foreign corporation in each jurisdiction in which
the ownership of its properties or the nature of its business or
both make such qualification necessary except for matters for
which the failure to receive or retain such qualification
individually or in the aggregate would not have a Material
Adverse Effect.
5.05. Maintenance of Properties. The Company shall, and
shall cause each of its Subsidiaries to, maintain or cause to be
maintained in good repair, working order and condition the
properties now or hereafter owned, leased or otherwise possessed
by it and shall make or cause to be made all needful and proper
repairs, renewals, replacements and improvements thereto so that
the business carried on in connection therewith may be properly
and advantageously conducted at all times.
5.06. Avoidance of Other Conflicts. The Company shall not,
and shall not permit any of its Subsidiaries to, violate or
conflict with, be in violation of or conflict with, or be or
remain subject to any liability (contingent or otherwise) on
account of any violation or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other
constituent documents), or
(c) any material agreement or instrument to which it is a
party or by which any of them or any of their respective
Subsidiaries is a party or by which any of them or any of their
respective Assets (now owned or hereafter acquired) may be
subject or bound.
5.07. Financial Accounting Practices. The Company shall,
and shall cause each of its Subsidiaries to, make and keep books,
records and accounts which, in reasonable detail, accurately and
fairly reflect its transactions and dispositions of its Assets
and maintain a system of internal accounting controls sufficient
to provide reasonable assurances that (a) transactions are
executed, (b) transactions are recorded as necessary (i) to
permit preparation of financial statements in conformity with
GAAP (and any other accounting principles applicable thereto) and
(ii) to maintain accountability for Assets, (c) access to Assets
is permitted only in accordance with management's general or
specific authorization, and (d) the recorded accountability for
Assets is compared with the existing Assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
5.08. Use of Proceeds. The Company shall use the proceeds
of all Loans hereunder only for its general corporate purposes.
The Company shall not use the proceeds of any Loans hereunder for
the purpose of buying or carrying any "margin stock" as such term
is defined in Regulation U of the Board of Governors of the
Federal Reserve System and will not directly or indirectly use
the proceeds of any Loans hereunder for any unlawful purpose or
in any manner inconsistent with any other provision hereof.
5.09. Continuation of or Change in Business. The Company
shall and shall cause each of the Guarantors to continue to
engage in their respective businesses substantially as conducted
and operated during the present and preceding fiscal year, and
the Company shall not, and shall not permit any of the Guarantors
to, engage in any other business which is not of substantially
the same general nature as the business engaged in by the Company
and the Guarantors as of the date hereof.
5.10. Consolidated Tax Return. The Company shall not, and
shall not suffer any of its Subsidiaries to, file or consent to
the filing of any consolidated income tax return with any Person
other than the Company and its Subsidiaries.
ARTICLE VI
NEGATIVE COVENANTS
The Company covenants to the Agent and each Bank as follows:
6.01. Financial Covenants.
(a) Consolidated Book Net Worth. The Company s
Consolidated Book Net Worth shall not at any time be less than
$75,000,000.
(b) Leverage Ratio. The Company s Leverage Ratio shall not
at any time exceed .25 to 1:00.
(c) Consolidated Interest Coverage Ratio. The Consolidated
Interest Coverage Ratio for the Rolling Period, shall at no time
be less than 4.0 to 1.0.
(d) UES Tangible Net Worth. UES Tangible Net Worth , shall
at no time be less than $35,000,000.
6.02. Negative Pledge/Liens. The Company shall not and
shall not permit any of the Guarantors to, at any time, (i)
covenant in favor of any Person other than the Agent and the
Banks that the Company will not create, assume, incur or suffer
to be created, assumed , incurred or to exist, directly or
indirectly, any Lien upon its property or assets of any character
whether now owned or hereafter acquired; or (ii) create, incur,
assume or suffer to exist any Lien on any of its property or
Assets, tangible or intangible, now owned or hereafter acquired,
(including, without limitation, the capital stock of any
Subsidiary) or agree or become liable to do so, except for the
following ("Permitted Liens"):
(a) Liens existing on the date hereof securing obligations
existing on the date hereof;
(b) Liens arising from taxes, assessments, charges, levies
or claims described in Section 5.03 hereof that are not yet due
or that remain payable without penalty or to the extent permitted
to remain unpaid under the provisions of such Section 5.03;
(c) Liens on property securing all or part of the purchase
price thereof to the Company or a Subsidiary of the Company, as
the case may be, and Liens (whether or not assumed) existing in
property at the time of purchase thereof by the Company or such
Subsidiary (and extension, renewal and replacement Liens upon the
same property), provided
(i) such Lien is created before or substantially
simultaneously with the purchase of such property by the Company
or such Subsidiary;
(ii) each such Lien is confined solely to the property so
purchased, improvements thereto and proceeds thereof, and
(iii) the aggregate amount of the obligations secured
by all such Liens on any particular property at any time
purchased by the Company or such Subsidiary, shall not exceed 90%
of the lesser of the fair market value of such property at such
time or the actual purchase price of such property.
(d) Deposits or pledges of cash or securities (other than
the capital stock of any Subsidiary of the Company) in the
ordinary course of business to secure (i) workmen's compensation,
unemployment insurance or other social security obligation, (ii)
performance of bids, tenders, trade contracts (other than for
payment of money) or leases, (iii) stay, surety or appeal bonds
or (iv) other obligations of a like nature incurred in the
ordinary course of business.
(e) Zoning restrictions, easements, minor restrictions on
the use of real property, minor irregularities in title thereto
and other minor Liens that do not in the aggregate materially
detract from the value of a property or asset, or materially
impair its use in the business of, the Company or its
Subsidiaries, as the case may be.
(f) Deposits or pledges of cash or securities (other than
the capital stock of the Company or any Subsidiary of the
Company) by the Company or any Subsidiary of the Company in the
ordinary course of business to secure performance obligations of
the Company or any such Subsidiary, as the case may be, under any
interest rate or currency swap or cap or other interest rate or
currency hedge agreement incurred by the Company or any such
Subsidiary in the ordinary course of business or other
obligations of a like nature incurred by the Company or any such
Subsidiary in the ordinary course of business.
(g) Liens securing the claims or demands of materialmen,
mechanics, contractors, landlords and other like Persons for
labor, materials, supplies or rentals incurred in the ordinary
course of business, but only if the payment thereof is not at the
time required or the validity thereof is being contested in good
faith and reserves have been made with respect thereto as
provided in Section 5.03.
(h) "Permitted Lien" shall in no event include any Lien
imposed by, or required to be granted pursuant to, ERISA or any
Environmental Law.
6.03. Mergers, Acquisitions, etc. The Company shall not,
and shall not permit any of the Guarantors to (v) merge with or
into or consolidate with any other Person, (w) liquidate, wind-
up, dissolve or divide, (x) acquire all or any substantial
portion of the properties of any going concern or going line of
business, (y) acquire all or any substantial portion of the
properties of any other Person, or (z) agree, become or remain
liable (contingently or otherwise) to do any of the foregoing
without the prior written consent of the Agent and the Banks,
which consent shall not be unreasonably withheld or delayed.
6.04. Dispositions of Properties. (a) The Company shall
not, and shall not permit any of the Guarantors to, sell, convey,
assign, transfer, pledge or otherwise dispose of any capital
stock in a Guarantor. (b) The Company shall not, and shall not
permit any of the Guarantors to, sell, convey, assign, lease,
transfer, abandon or otherwise dispose of, voluntarily or
involuntarily, (any of the foregoing being referred to in this
Section 6.04 (b) as a "transaction" and any series of related
transactions constituting but a single transaction) any
Indebtedness of a Subsidiary or any of its other properties or
Assets, (tangible or intangible), or agree, become or remain
liable (contingently or otherwise) to do any of the foregoing,
except:
(i) Transactions in the ordinary course of business and on
customary terms;
(ii) Sales, conveyances, assignments or other transfers or
dispositions in immediate exchange for cash or tangible Assets,
provided that such transaction shall not otherwise be prohibited
by any other provision of this Agreement and no Event of Default
shall occur and be continuing or shall exist at such time or
after giving effect to such transaction.
By way of illustration, and without limitation, it is understood
that the following are dispositions of property or Assets subject
to this Section 6.04(b): any disposition of accounts, chattel
paper or general intangibles, with or without recourse; and any
disposition of any leasehold interest. Nothing in this Section
6.04(b) shall be construed to limit the restriction set forth in
Section 6.04(a) hereof or any other restriction on dispositions
of property imposed by this Agreement.
6.05. Dealings with Affiliates. The Company shall not, and
shall not permit any of its Subsidiaries to, enter into or carry
out any transaction with (including, without limitation, purchase
or lease property or services from, sell or lease property or
services to, loan or advance to, or enter into, suffer to remain
in existence or amend any contract, agreement or arrangement
with) any Affiliate of the Company or of such Subsidiary,
directly or indirectly, or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, except:
(a) Existence and performance of contracts, agreements and
arrangements in existence as of the date hereof and any renewals,
extensions, or continuations thereof;
(b) Directors, officers and employees of the Company and
its Subsidiaries may be compensated for services rendered in such
capacity to the Company or such Subsidiary, provided that such
compensation is in good faith and on terms no less favorable to
the Company or such Subsidiary than those that could have been
obtained in a comparable transaction on an arm's-length basis
from an unrelated Person, and the board of directors of the
Company or such Subsidiary (including a majority of the directors
having no direct or indirect interest in such transaction)
approve the same;
(c) Transactions in the ordinary course of business and
consistent with past practices between a Subsidiary of the
Company, on the one hand, and the Company or another Subsidiary
of the Company, on the other hand, in good faith and on terms not
substantially less favorable to the Company or either such
Subsidiary than those that could have been obtained in a
comparable transaction on an arm's-length basis from an unrelated
Person; and
(d) Other transactions with Affiliates in good faith and on
terms not substantially less favorable to the Company or such
Subsidiary than those that could have been obtained in a
comparable transaction on an arm's-length basis from an unrelated
Person.
6.06. Limitation on Other Restrictions on Dividends by
Subsidiaries, etc. The Company shall not permit any Subsidiary
of the Company to be or become subject to any restriction of any
nature (whether arising by operation of Law, by agreement, by its
articles of incorporation, by-laws or other constituent documents
of such Subsidiary, or otherwise) on the right of such Subsidiary
from time to time to (w) declare and pay Stock Payments with
respect to capital stock owned by the Company or any Subsidiary,
(x) pay any Indebtedness, obligations or liabilities from time to
time owed to the Company or any Subsidiary including, without
limitation, any management fees, tax payments or otherwise
pursuant to any contractual arrangement for the provision of
goods or services, or (y) make loans or advances to the Company
or any Subsidiary, or (z) transfer any of its properties or
assets to the Company or any Subsidiary, except:
(a) Restrictions pursuant to this Agreement;
(b) Legal restrictions of general applicability under the
corporation law under which such Subsidiary is incorporated, and
fraudulent conveyance or similar laws or general applicability
for the benefit of creditors of such Subsidiary generally;
(c) With respect to clause (z) above: (i) non-assignment
provisions of any executory contract or of any lease by the
Company or such Subsidiary as lessee, and (ii) restrictions on
transfer of property subject to a Permitted Lien for the benefit
of the holder of such Permitted Lien;
(d) Any restriction contained in an agreement or instrument
applicable to a Subsidiary of the Company acquired by the Company
or its Subsidiary after the date hereof, which restriction was
not entered into in connection with or in contemplation of such
acquisition, and which restriction is not applicable to any
Person, property or assets, other than such acquired Subsidiary
and its property and assets;
(e) Any restriction or limitation imposed by an Official
Body having jurisdiction thereof.
ARTICLE VII
EVENTS OF DEFAULT
7.01 If one or more of the following described Events of
Default shall occur, that is to say:
(a) The Company shall default in the payment when due of
principal of any Note; or
(b) The Company shall default in the payment when due of
interest on any Note, or of any Facility Fee, or any other fee
payable hereunder, and such default shall have continued for a
period of five days thereafter; or
(c) The Company shall default in the observance,
performance or fulfillment of any covenant contained in Article
VI hereof, or any of the covenants contained in Sections 5.04(a),
5.04(b), 5.07, 5.09 or 5.10 hereof; or
(d) Any representation or warranty made by the Company
herein or in any other Loan Document, or any certificate or
financial statement furnished pursuant to the provisions hereof
or thereof, shall prove to have been incorrect, false or
misleading in any material respect as of the time made, furnished
or deemed made; or
(e) The Company shall default in the observance,
performance or fulfillment of any other covenant, condition or
provision hereof (not otherwise referred to in (a), (b), (c) or
(d) above) and such default shall not be remedied for a period of
30 days after written notice thereof to the Company from the
Agent or the holder of any Note issued hereunder; or
(f) The Company or any Subsidiary of the Company shall
default (i) in any payment of principal of or interest on any
Indebtedness in principal amount of $500,000 or more beyond any
period of grace provided with respect thereto, or (ii) in the
performance of any other covenant, term or condition contained in
any agreement under which any such Indebtedness is created, if
the effect of such default is to cause or permit the holder or
holders of such obligation or their agents (or trustee on behalf
of such holder or holders) to cause, such obligation to become
due prior to its stated maturity; or
(g) Any ERISA Group Member shall fail to pay when due any
amount which it shall have become liable to pay under Title IV of
ERISA; or notice of an intent to terminate any Plan shall be
filed under Title IV of ERISA by any ERISA Group Member, any Plan
Administrator or any combination of the foregoing unless the
assets of the Plan to be terminated are sufficient to discharge
when due all obligations of such Plan; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to
impose liability in respect of, or to cause a trustee to be
appointed to administer any Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Plan must be terminated or there shall
occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one
or more Plans which could cause one or more ERISA Group Members
to incur a current payment obligation; or
(h) One or more judgments for the payment of money shall
have been entered against the Company or any Subsidiary of the
Company, which judgment or judgments exceed $1,000,000 in the
aggregate and such judgment or judgments shall have remained
undischarged and unstayed for a period of thirty days; or
(i) This Agreement, any Guaranty or any other Loan Document
(or any material provision of any of the foregoing) shall, for
any reason, be or become, in whole or in material part, nullified
or other than in full force and effect; or
(j) Any action or proceeding is initiated against the
Company or any Subsidiary of the Company by any Official Body
which, if resolved against the Company or such Subsidiary,
could, either individually or in the aggregate, reasonably be
expected to restrict the ability of the Company to repay
outstanding loans hereunder; or
(k) An involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Company or any
Subsidiary of the Company or of a substantial part of the
property or assets of the Company or such Subsidiary under Title
11 of the United States Code, as now constituted or hereafter
amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official
for the Company or any Subsidiary of the Company or for a
substantial part of the property or assets of the Company or such
Subsidiary or (iii) the winding-up or liquidation of the Company
or a Subsidiary of the Company and such proceeding or petition
shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered; or
(l) The Company or a Subsidiary of the Company shall
institute proceedings to be adjudicated a voluntary bankrupt, or
shall consent to the filing of a bankruptcy proceeding against
it, or shall file a petition or answer or consent seeking
reorganization under the Federal bankruptcy laws, or any other
similar applicable Federal or State law, or shall consent to the
filing of any such petition, or shall consent to the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy
or insolvency of it or of a substantial part of its property, or
shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they
become due, or corporate action shall be taken by the Company or
such Subsidiary in furtherance of any of the aforesaid purposes;
then, (i) as to any Event of Default specified under subsections
(a) through (j) of this Article VII, the Banks shall be under no
further obligation to make Loans hereunder and the Agent shall,
upon the request of the Required Banks, by notice to the Company,
declare the unpaid balance of all Notes then outstanding and
interest accrued thereon and all other liabilities of the Company
hereunder and thereunder to be forthwith due and payable, and the
same shall thereupon become and be immediately due and payable,
without presentment, demand, protest or notice or any kind, all
of which are hereby expressly waived; and (ii) as to any Event of
Default specified under subsections (k) or (l) of this Article
VII, the Banks shall be under no further obligation to make Loans
hereunder and the unpaid balance of all Notes outstanding
hereunder and interest accrued thereon and all other liabilities
of the Company hereunder and thereunder shall be immediately due
and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived.
ARTICLE VIII
THE AGENT
8.01. Appointment. Each Bank hereby appoints Mellon Bank,
N.A. as Agent for such Bank under this Agreement and irrevocably
authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Agent by
the terms of this Agreement, together with such other powers as
are reasonably incidental thereto. The Agent agrees to act as
such, upon the express conditions contained in this Article VIII.
Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Agent shall have no duties or responsibilities,
except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Agreement or otherwise exist against the Agent.
The provisions of this Article VIII are solely for the benefit of
the Agent and the Banks, and neither the Company nor any other
Person shall have any rights as a third party beneficiary of any
of the provisions hereof. In performing its functions and duties
under this Agreement, the Agent shall act solely as Agent of the
Banks and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Company. Each
Bank agrees that the rights and remedies granted to the Agent
under this Agreement shall be exercised exclusively by the Agent,
and that no Bank shall have any right individually to exercise
any such right or remedy, except to the extent provided herein.
8.02. Delegation of Duties. The Agent may execute any of
its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care
except to the extent otherwise required by Section 8.03.
8.03. Exculpatory Provisions. None of the Agent or any of
its officers, directors, employees, representatives, agents,
attorneys-in-fact or Affiliates shall be (i) liable to the Banks
for any action lawfully taken or omitted to be taken by it for
such person under or in connection with this Agreement (except
for its or such person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the
Banks for any recitals, statements, representations or warranties
made by the Company or any of its officers contained in this
Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement, or for any failure
of the Company or any of its officers to perform its obligations
hereunder or thereunder. The Agent shall be under no obligation
to any Bank or ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or
records of the Company. The Agent shall not be responsible to
any Bank for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement,
the Notes, the Guaranties or any other Loan Documents or for any
representations, warranties, recitals or statements made herein
or therein or made in any written or oral statement or in any
financial or other statements, instruments, reports, certificates
or any other documents in connection herewith or therewith
furnished by the Agent to the Banks or by or on behalf of the
Company to the Agent or any Bank, or be required to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein
or therein or as to the use of the proceeds of the Loans or of
the existence or possible existence of any Potential Default or
Event of Default. The duties and responsibilities of the Agent
under this Agreement shall be mechanical and administrative in
nature. The Agent shall be under no obligation to take any
action hereunder if the Agent believes in good faith that taking
such action may conflict with any Law or provision of this
Agreement.
8.04. Reliance by Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, facsimile, telex or teletype
message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed,
sent or made by the proper person or persons and upon advice and
statements of legal counsel (including without limitation counsel
to the Company), independent accountants and other experts
selected by the Agent. The Agent shall be fully justified in
failing or refusing to take or continue to take any action under
this Agreement unless it shall first receive such advice or
concurrence of the Required Banks (or to the extent specifically
provided herein, of all of the Banks) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a
request of the Required Banks (or to the extent specifically
provided, of all the Banks), and such request and any action
taken or failure to act pursuant thereto shall be binding upon
all the Banks.
8.05. Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Potential
Default or Event of Default hereunder unless the Agent has
received notice from a Bank or the Company referring to this
Agreement, describing such Potential Default or Event of Default
and stating that such notice is a "notice of default". In the
event that the Agent receives such notice, the Agent shall give
prompt notice thereof to the Banks. The Agent shall take such
action with respect to such Potential Default or Event of Default
as shall be reasonably directed by the Required Banks, provided
that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to
such Potential Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
8.06. Non-Reliance on Agent and Other Banks. Each Bank
expressly acknowledges that none of its officers, directors,
employees, agents, representatives, attorneys-in-fact or
Affiliates has made any representations or warranties to it and
that no act by the Agent hereinafter taken, including any review
of the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank
represents to the Agent that it has, independently and without
reliance upon the Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets,
operations, property, financial and other conditions, prospects
and creditworthiness of the Company and made its own decision to
make its Commitment hereunder and enter into this Agreement.
Each Bank also represents that it will, independently and without
reliance upon the Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform
itself as to the Business, Assets, operations, property,
financial and other conditions, prospects and creditworthiness of
the Company. Except for notices, reports and other documents
expressly required to be furnished to the Banks by the Agent, the
Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the
business, operations, assets, property, financial and other
conditions, prospects or creditworthiness of the Company which
may come into the possession of the Agent or any of its officers,
directors, employees, agents, representatives, attorneys-in-fact
or Affiliates.
8.07. Indemnification. The Banks agree to indemnify the
Agent in its capacity as such ratably according to their
respective Commitments (or if the Total Commitment has been
terminated and all Loans have been repaid, their respective
Commitments immediately prior to such termination and repayment)
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, reasonable
expenses or disbursements of any kind whatsoever which may at any
time (including without limitation at any time following the
repayment of the Loan) be imposed on, incurred by or asserted
against the Agent in its capacity as such in any way relating to
or arising out of this Agreement or any other Loan Documents or
other documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted
to be taken by the Agent under or in connection with any of the
foregoing, but only to the extent that any of the foregoing is
not paid by the Company or any of its Subsidiaries, provided that
no Bank shall be liable to the Agent for the payment of any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the gross negligence or
willful misconduct of the Agent. The agreements in this Section
8.07 shall survive the payment of all the Loans.
8.08. Agent In Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Company and its
Subsidiaries as though the Agent were not the Agent hereunder.
With respect to the Loan made by it, the Agent shall have the
same rights and powers under this Agreement as any Bank and may
exercise the same as though it were not the Agent and the terms
"Bank" and "Banks" shall include the Agent in its individual
capacity.
8.09. Successor Agent. The Agent may resign at any time by
giving 30 days' prior written notice thereof to the Banks and the
Company. Upon any such resignation, the Required Banks shall
have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed, and shall have accepted such
appointment, within 30 days after such notice of resignation,
then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent. Upon the acceptance by a successor Agent of its
appointment as Agent hereunder, such successor Agent shall
thereupon succeed to and become vested with all the properties,
rights, powers, privileges and duties of the former Agent,
without further act, deed or conveyance. Upon the effective date
of resignation of a retiring Agent, such Agent shall be
discharged from its duties as Agent under this Agreement but the
provisions of this Agreement shall inure to its benefit as to any
actions taken or omitted by it while it was Agent under this
Agreement. If and so long as no successor Agent shall have been
appointed, then any notice or other communication required or
permitted to be given by the Agent shall be sufficiently given if
given by the Required Banks, all notices or other communications
required or permitted to be given to the Agent shall be given to
each Bank, and all payments to be made to the Agent shall be made
directly to the Company or Bank for whose account such payment is
made.
8.10. Calculations. The Agent shall not be liable for any
calculation, apportionment or distribution of payments made by it
in good faith. If such calculation, apportionment or
distribution is subsequently determined to have been made in
error, the sole recourse of any Bank to whom payment was due but
not made shall be to recover from the other Banks any payment in
excess of the amount to which they are determined to be entitled.
8.11. Funding by Agent. Unless the Agent shall have been
notified in writing by any Bank not later than the close of
business on the day before the day on which Loans are requested
by the Company to be made that such Bank will not make its
ratable share of such Loans, the Agent may assume that such Bank
will make its ratable share of the Loans, and in reliance upon
such assumption the Agent may (but in no circumstances shall be
required to) make available to the Company a corresponding
amount. If and to the extent that any Bank fails to make such
payment to the Agent on such date, such Bank shall pay such
amount on demand (or, if such Bank fails to pay such amount on
demand, the Company shall pay such amount on demand), together
with interest, for the Agent's own account, for each day until
repayment to the Agent from and including the date of the Agent's
payment to and including the date which is two days thereafter at
the Federal Funds Effective Rate for each such day and for each
day thereafter (before and after judgment) at the rate or rates
per annum applicable to such Loans. All payments to the Agent
under this Section shall be made to the Agent at its Office in
Dollars in funds immediately available at such Office, without
set-off, withholding, counterclaim or other deduction of any
nature.
ARTICLE IX
MISCELLANEOUS
9.01. Holidays. Unless specifically otherwise provided
herein, whenever any payment or action to be made or taken
hereunder shall be stated to be due on a day which is not a
Business Day, such payment or action shall be made or taken on
the next following Business Day and such extension of time shall
be included in computing interest or fees, if any, in connection
with such payment or action.
9.02. Records. The unpaid principal amount of the Loans
owing to each Bank, the unpaid interest accrued thereon, the
interest rate or rates applicable to such unpaid principal
amount, the duration of such applicability, each Bank's Current
Commitment, and the accrued and unpaid Facility Fees and Agent s
Fees shall at all times be ascertained from the records of the
Agent, which shall be conclusive absent manifest error.
9.03. Amendments and Waivers. Neither this Agreement nor
any other Loan Document may be amended, modified or supplemented
except in accordance with the provisions of this Section.
Subject to the consent of the requisite Banks as hereinafter
provided, the Agent and the Company may from time to time amend,
modify or supplement the provisions of this Agreement or any
other Loan Document for the purpose of amending, adding, to, or
waiving any provisions, or changing in any manner the rights and
duties of the Company, the Agent or any Bank. Any such
amendment, modification or supplement made by the Company and the
Agent in accordance with the provisions of this Section shall be
binding upon the Company, each Bank and the Agent. The Agent
shall enter into such amendments, modifications or supplements
from time to time as directed by the Required Banks, and only as
so directed, provided, that no such amendment, modification or
supplement may be made which will:
(a) Increase the Commitment of any Bank over the amount
thereof then in effect, or extend any Maturity Date without the
written consent of each Bank affected thereby;
(b) Reduce the principal amount of or extend the time for
any scheduled payment of principal of any Loan, or reduce the
rate or amount of interest or extend the time for payment of
interest borne by any Loan or extend the time for payment of or
reduce the amount of any Facility Fee or reduce or postpone the
date for payment of any other fees, expenses, indemnities or
amounts payable under this Agreement, without the written consent
of each Bank affected thereby;
(c) Change the definition of "Required Banks" or amend this
Section 9.03, without the written consent of all the Banks;
(d) Amend or waive any of the provisions of Article VIII
hereof, or impose additional duties upon the Agent or otherwise
adversely affect the rights, interests or obligations of the
Agent, without the written consent of the Agent;
and provided further, that any such amendment, modification or
supplement must be in writing and shall be effective only to the
extent set forth in such writing. Any Event of Default or
Potential Default waived or consented to in any such amendment,
modification or supplement shall be deemed to be cured and not
continuing to the extent and for the period set forth in such
waiver or consent, but no such waiver or consent shall extend to
any other or subsequent Event of Default or Potential Default or
impair any right consequent thereto.
9.04. No Implied Waiver; Cumulative Remedies. No course of
dealing and no delay or failure of the Agent or any Bank in
exercising any right, power or privilege under this Agreement or
any Note shall affect any other or future exercise thereof or
exercise of any other right, power or privilege; nor shall any
single or partial exercise of any such right, power or privilege
or any abandonment or discontinuance of steps to enforce such a
right, power or privilege preclude any further exercise thereof
or of any other right, power or privilege. The rights and
remedies of the Agent and the Banks under this Agreement and the
Notes are cumulative and not exclusive of any rights or remedies
which the Agent or any Bank would otherwise have hereunder or
thereunder, at law, in equity or otherwise.
9.05. Notices.
(a) Except to the extent otherwise expressly permitted
hereunder or thereunder, all notices, requests, demands,
directions and other communications (collectively "Notices")
under this Agreement shall be in writing (including telexed and
telecopied communication) and shall be sent by first class mail,
or by nationally recognized overnight courier, or by telex or
telecopier (with confirmation in writing mailed first class or
sent by such an overnight courier), or by personal delivery. All
notices shall be sent to the applicable party at the address
stated on the signature pages hereof or in accordance with the
last unrevoked written direction from such party to the other
parties hereto, in all cases with postage or other charges
prepaid. Any such properly given notice to the Agent or any Bank
shall be effective when received. Any such properly given notice
to the Company shall be effective on the earliest to occur of
receipt, telephone confirmation of receipt of telex or telecopy
communication, one Business Day after delivery to a nationally
recognized overnight courier, or three Business Days after
deposit in the mail.
(b) Any Bank giving any notice to the Company or any other
party hereto shall simultaneously send a copy thereof to the
Agent, and the Agent shall promptly notify the other Banks of the
receipt by it of any such notice.
(c) The Agent and each Bank may rely on any notice (whether
or not such notice is made in a manner permitted or required by
this Agreement or any other Loan Document purportedly made by or
on behalf of the Company, and neither the Agent nor any Bank
shall have any duty to verify the identity or authority of any
Person giving such notice.
9.06. Expenses; Taxes; Indemnity.
(a) The Company agrees to pay or cause to be paid and to
save the Agent and each of the Banks harmless against liability
for the payment of all reasonable out-of-pocket costs and
expenses (including but not limited to reasonable fees and
expenses of counsel, including internal counsel for the Agent or
any Bank, local counsel, auditors, consulting engineers,
appraisers, and all other professional, accounting, evaluation
and consulting costs) incurred by the Agent or any Bank from time
to time arising from or relating to (i) any requested amendments,
modifications, supplements, waivers or consents (whether or not
ultimately entered into or granted) to this Agreement, and (ii)
the enforcement or preservation of rights under this Agreement
(including but not limited to any such costs or expenses arising
from or relating to collection or enforcement of an outstanding
Loan or any other amount owing hereunder or thereunder by the
Agent or any Bank, and any litigation, proceeding (including any
bankruptcy proceeding), dispute, work-out, restructuring or
rescheduling related in any way to this Agreement).
(b) The Company hereby agrees to pay all stamp, document,
transfer, recording, filing, registration, search, sales and
excise fees and taxes and all similar impositions now or
hereafter determined by the Agent or any Banks to be payable in
connection with this Agreement or any other documents,
instruments or transactions pursuant to or in connection herewith
or therewith, and the Company agrees to save the Agent and each
Bank harmless from and against any and all present or future
claims, liabilities or losses with respect to or resulting from
any omission to pay or delay in paying any such fees, taxes or
impositions.
(c) The Company hereby agrees to reimburse and indemnify
each of the Agent, the Banks, and their respective Affiliates,
officers, directors, employees, attorneys and agents (the
"Indemnified Parties") from and against any and all losses,
liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements of any kind or
nature whatsoever (including, without limitation, the reasonable
fees and disbursements of counsel for such Indemnified Party,
including internal counsel, in connection with any investigative,
administrative or judicial proceeding commenced or threatened,
whether or not such Indemnified Party shall be designated a party
thereto) that may at any time be imposed on, asserted against or
incurred by such Indemnified Party as a result of, or arising out
of, or in any way related to or by reason of, this Agreement or
any transaction from time to time contemplated hereby or any
transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan and (without in any way
limiting the generality of the foregoing) any violation or breach
of any Environmental Law or any other Law by the Company or any
Subsidiary of the Company or any Environmental Affiliate of any
of them; any Environmental Claim arising out of the management,
use, control, ownership or operation of property by any of such
Persons, including all on-site and off-site activities involving
Environmental Concern Materials; or any exercise by the Agent or
any Bank or any of its rights or remedies under this Agreement;
but excluding any such losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements resulting solely from the negligence or
willful misconduct of such Indemnified Party, as finally
determined by a court of competent jurisdiction. If and to the
extent that the foregoing obligations of the Company under this
subsection (c), or any other indemnification obligation of the
Company hereunder are unenforceable for any reason, the Company
hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under
applicable Law.
9.07. Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any
jurisdiction such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
9.08. Prior Understandings. This Agreement and the other
Loan Documents supersede all prior and contemporaneous
understandings and agreements, whether written or oral, among the
parties hereto relating to the transactions provided for herein
and therein.
9.09. Duration; Survival. All representations and
warranties contained herein or made in connection herewith shall
survive the making of, and shall not be waived by the execution
and delivery, of this Agreement, any investigation by or
knowledge of the Agent or any Bank, the making of any Loan, or
any other event or condition whatever. All covenants and
agreements contained herein shall continue in full force and
effect from and after the date hereof so long as the Company may
borrow hereunder and until payment in full of all obligations.
Without limitation, all obligations of the Company hereunder to
make payments to or indemnify the Agent or any Bank shall survive
the payment in full of all other obligations hereunder,
termination of the Company's right to borrow hereunder, and all
other events and conditions whatever.
9.10. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on
separate counterparts each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute
but one and the same instrument.
9.11. Limitation on Payments. The parties hereto intend to
conform to all applicable Laws in effect from time to time
limiting the maximum rate of interest that may be charged or
collected. Accordingly, notwithstanding any other provision
hereof, the Company shall not be required to make any payment to
or for the account of any Bank, and each Bank shall refund any
payment made by the Company, to the extent that such requirement
or such failure to refund would violate or conflict with
nonwaivable provisions of applicable Laws limiting the maximum
amount of interest which may be charged or collected by such
Bank.
9.12. Set-Off. The Company hereby agrees that, to the
fullest extent permitted by law, if an Event of Default or
Potential Default shall have occurred and be continuing or shall
exist and if any obligation of the Company hereunder shall be due
and payable (by acceleration or otherwise), each Bank shall have
the right, without notice to the Company, to set-off against and
to appropriate and apply to such obligation any Indebtedness,
liability or obligation of any nature owing to the Company by
such Bank, including but not limited to all deposits (whether
time or demand, general or special, provisionally credited or
finally credited, whether or not evidenced by a certificate of
deposit) now or hereafter maintained by the Company with such
Bank. Such right shall be absolute and unconditional in all
circumstances and, without limitation, shall exist whether or not
such Bank or any other Person shall have given notice or made any
demand to the Company or any other Person, whether such
Indebtedness, obligation or liability owed to the Company is
contingent, absolute, matured or unmatured (it being agreed that
such Bank may deem such indebtedness, obligation or liability to
be then due and payable at the time of such set-off), and
regardless of the existence or adequacy of any collateral,
guaranty or any other security, right or remedy available to any
Bank or any other Person. The Company hereby agrees that, to the
fullest extent permitted by law, any Participant and any branch,
Subsidiary or Affiliate of any Bank or any Participant shall have
the same rights of set-off as a Bank as provided in this Section
(regardless of whether such Participant, branch, Subsidiary or
Affiliate would otherwise be deemed in privity with or a direct
creditor of the Company). The rights provided by this Section
are in addition to all other rights and remedies which any Bank
(or any such Participant, branch, Subsidiary or Affiliate) may
otherwise have under this Agreement, at Law or in equity, or
otherwise, and nothing in this Agreement shall be deemed a waiver
or prohibition of or restriction on the rights of set-off or
bankers' lien of any such Person.
9.13. Sharing of Collections. The Banks hereby agree among
themselves that if any Bank shall receive (by voluntary payment,
realization upon security, set-off or from any other source) any
amount on account of the Loans, interest thereon, or any other
obligation contemplated by this Agreement to be made by the
Company pro rata to all Banks in greater proportion than any such
amount received by any other Bank, then the Bank receiving such
proportionately greater payment shall notify each other Bank and
the Agent of such receipt, and equitable adjustment will be made
in the manner stated in this Section so that, in effect, all such
excess amounts will be shared ratably among all of the Banks.
The Banks receiving such excess amount shall purchase (which it
shall be deemed to have done simultaneously upon the receipt of
such excess amount) for cash from the other applicable Banks a
participation in the applicable obligations owed to such other
Banks in such amount as shall result in a ratable sharing by all
Banks of such excess amount (and to such extent the receiving
Bank shall be a Participant). If all or any portion of such
excess amount is thereafter recovered from the Bank making such
purchase, such purchase shall be rescinded and the purchase price
restored to the extent of such recovery, together with interest
or other amounts, if any, required by Law to be paid by the Bank
making such purchase. The Company hereby consents to and
confirms the foregoing arrangements. Each Participant shall be
bound by this Section as fully as if it were a Bank hereunder.
9.14. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Company, the Banks,
and all future holders of the Notes, the Agent and their
respective successors and assigns, except that the Company may
not assign or transfer any of its rights hereunder or interests
herein without the prior written consent of all the Banks and the
Agent, and any purported assignment without such consent shall be
void.
(b) Participations. Any Bank may, in the ordinary course
of its business and in accordance with applicable Law, at any
time sell participations to one or more commercial banks or other
Persons (each a "Participant") in all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments and the Loans
owing to it and any Note held by it); provided, that
(i) any such Bank's obligations under this Agreement shall
remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and
obligations under this Agreement, and
(iv) such Participant shall be bound by the provisions of
Section 9.13 hereof.
The Company agrees that any such Participant shall be entitled to
the benefits of Sections 2.11, 2.12 and 9.06 with respect to its
participation in the Commitments and the Loans outstanding from
time to time; provided, that no such Participant shall be
entitled to receive any greater amount pursuant to such Sections
than the transferor Bank would have been entitled to receive in
respect of the amount of the participation transferred to such
Participant had no such transfer occurred.
(c) Assignments. Any Bank may, in the ordinary course of
its business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of
its Commitments and Loans owing to it and any Note held by it) to
any Bank, any Affiliate of a Bank or to one or more additional
commercial banks or other Persons (each a "Purchasing Bank");
provided, that
(i) any such assignment to a Purchasing Bank which is not a
Bank or an Affiliate of a Bank shall be made only with the
consent of the Company and the Agent (which in each case shall
not be unreasonably withheld or delayed), provided, however, that
the consent of the Company required by this Subsection (i) of
Section 9.14(c) shall not be required at any time during the
occurrence, continuance, or existence of an Event of Default or
Potential Default, and
(ii) each such assignment shall be of a constant, and not a
varying, percentage of each Commitment of the transferor Bank and
of all of the transferor Bank's rights and obligations under this
Agreement.
In order to effect any such assignment, the transferor Bank and
the Purchasing Bank shall execute and deliver to the Agent a
notice of such assignment (which shall be signed on behalf of the
Purchasing Bank and the transferor Bank and shall include the
effective date of such assignment (the "Assignment Effective
Date"), the portion of the Commitment and Loans being assigned,
the name, address and payment and notice instructions of the
Purchasing Bank and the consents required in Clause (i) above)
(the "Assignment Notice"), together with any Note subject to such
assignment (the "Transferor Bank Notes") and a processing and
recording fee of $2,000; and, upon receipt thereof, the Agent
shall accept such Assignment Notice and the Agent shall record
such acceptance in the Register. Upon such execution, delivery,
acceptance and recording, from and after the Assignment Effective
Date specified in such Assignment Notice
(x) the Purchasing Bank shall be a party hereto and, to the
extent provided in such Assignment Notice, shall have the rights
and obligations of a Bank hereunder, and
(y) the transferor Bank thereunder shall be released from
its obligations under this Agreement to the extent so transferred
(and, in the case of an Assignment Notice covering all or the
remaining portion of a transferor Bank's rights and obligations
under this Agreement, such transferor Bank shall cease to be a
party to this Agreement) from and after the Assignment Effective
Date.
On or prior to the Assignment Effective Date specified in an
Assignment Notice, the Company, at its expense, shall execute and
deliver to the Agent (for delivery to the Purchasing Bank) a new
Note evidencing such Purchasing Bank's assigned Commitments or
Loans and (for delivery to the transferor Bank) a replacement
Note in the principal amount of the Loans or Commitments retained
by the transferor Bank (such Notes to be in exchange for, but not
in payment of, those notes then held by such transferor Bank).
Each such replacement Note shall be dated the date and be
substantially in the form of the predecessor Note. The Agent
shall mark the predecessor Notes, "exchanged" and deliver them to
the Company. Accrued interest and accrued fees shall be paid to
the Purchasing Bank at the same time or times provided in the
predecessor Notes, and this Agreement.
(d) Register. The Agent shall maintain at its office a
register (the "Register") for the recordation of the names and
addresses of the Banks and the Commitment of, and principal
amount of the Loans owing to, each Bank from time to time. The
entries in the Register shall be conclusive (absent manifest
error) and the Company, the Agent and the Banks may treat each
person whose name is recorded in the Register as a Bank hereunder
for all purposes of the Agreement. The Register shall be
available for inspection by the Company or any Bank at any
reasonable time and from time to time upon reasonable prior
notice.
(e) Financial and Other Information. Subject to the
provisions of the second sentence of this Section 9.14(e), the
Company authorizes the Agent and each Bank to disclose to any
Participant or Purchasing Bank (each, a "transferee") and any
prospective transferee any and all financial and other
information in the possession of the Agent or such Bank, as the
case may be, concerning the Company and its Subsidiaries and
Affiliates which has been or may be delivered to such Person by
or on behalf of the Company in connection with this Agreement or
the Agent's or such Bank's credit evaluation of the Company and
its Subsidiaries and Affiliates. Each Bank and the Agent agrees
(on behalf of itself and each of its Affiliates, directors,
officers, employees and representatives) to use reasonable
precautions to keep confidential, in accordance with their
customary procedures for handling confidential information of
this nature and in accordance with safe and sound banking
practices, any non-public information supplied to it by the
Company pursuant to this Agreement, provided that nothing herein
shall limit the disclosure of any such information (i) to the
extent required by statute, rule, regulation or judicial process,
(ii) to counsel for any of the Banks or the Agent, (iii) to bank
examiners, auditors or accountants, (iv) to the Agent or any
other Bank, (v) in connection with any litigation to which any
one or more of the Banks is a party or (vi) to any assignee or
participant (or prospective assignee or participant) so long as
such assignee or participant (or prospective assignee or
participant) first executes and delivers to the respective Bank a
confidentiality agreement in such form and substance as is
customary in transactions of this type and consistent with this
Section; provided, further, that, unless specifically prohibited
by applicable law or court order, each Bank shall, prior to
disclosure thereof, notify the Company of any request for
disclosure of any such non-public information (x) by any
governmental agency or representative thereof (other than any
such request in connection with an examination of the financial
condition of such Bank by such governmental agency) or (y)
pursuant to legal process; and provided, finally, that in no
event shall any Bank or the Agent be obligated or required to
return any materials furnished by the Company. Each Bank agrees
that it will not use any non-public information supplied to it by
the Company pursuant to this Agreement for any purpose unrelated
to this Agreement and the Loans.
(f) Assignments to Federal Reserve Bank. Any Bank may at
any time assign all or any portion of its rights under this
Agreement, including without limitation any Loans owing to it,
and any Note held by it to a Federal Reserve Bank. No such
assignment shall relieve the transferor Bank from its obligations
hereunder.
9.15. Governing Law; Submission to Jurisdiction; Waiver of
Jury Trial; Limitation of Liability.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES.
(b) Certain Waivers. THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY
PERSON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING
IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA,
AND SUBMITS TO THE JURISDICTION OF SUCH COURTS (BUT NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY BANK TO BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO
THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH
COURT, WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT,
WITH RESPECT TO ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER THE COMPANY;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY
REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE
COMPANY AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 9.05
HEREOF (TO THE ATTENTION OF "GENERAL COUNSEL"), AND CONSENTS AND
AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID
AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE
VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER
PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) Limitation of Liability. TO THE FULLEST EXTENT
PERMITTED BY LAW, NO CLAIM MAY BE MADE BY THE COMPANY AGAINST THE
AGENT ANY BANK OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE,
ATTORNEY OR AGENT OF ANY OF THEM FOR ANY SPECIAL INCIDENTAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY
CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION,
OR EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH (WHETHER
FOR BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY).
THE COMPANY HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON
ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY
EXISTS OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN
OR SUSPECTED TO EXIST IN ITS FAVOR.
[Remainder of Page Intentionally Left Blank]
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this
Agreement as of the date first above written.
AMPCO-PITTSBURGH CORPORATION.
By:
(Signature)
Name: Robert J. Reilly
Title: Vice President- Finance and Treasurer
Address for Notices:
600 Grant Street
Suite 4600
Pittsburgh, PA 15219
Attention: Robert J. Reilly
Telephone: (412) 456-4410
Telecopier: (412) 456-4404
MELLON BANK, N.A., individually and as Agent
By:
(Signature)
Name: Peter K. Lee
Title: Vice President
Address for Notices:
One Mellon Bank Center
Pittsburgh, PA 15158
Attention: Peter K Lee
Telephone: (412) 234-1913
Telecopier: (412) 234-8888
PNC BANK, NATIONAL ASSOCIATION.
By:
(Signature)
Name: Mark W. Rutherford
Title: Vice President
Address for Notices:
249 Fifth Avenue
Pittsburgh PA 15265
Telephone: (412) 762-6278
Telecopier: (412) 762-6484
EXHIBIT A
To Credit Agreement
AMPCO-PITTSBURGH CORPORATION
Promissory Note
$ Pittsburgh, Pennsylvania
________ ___, 1998
FOR VALUE RECEIVED, the undersigned AMPCO-PITTSBURGH CORPORATION,
a ___________ corporation (the "Company"), hereby promises to pay
to the order of (the "Bank"), on the Maturity
Date for each Loan (whether a Base Rate Loan or a Euro-Rate Loan)
made by the Bank to the Company pursuant to the Agreement
described below, the lesser of (i) the principal sum of
Dollars ($ ) or (ii) the unpaid
principal amount of all such Loans made by the Bank maturing on
such Maturity Date. The Company further promises to pay to the
order of the Bank interest on the unpaid principal amount hereof
from time to time outstanding at the rate or rates per annum
determined pursuant to Section 2.07 of, or as otherwise provided
in, the Agreement, payable on the dates set forth in Section 2.07
of, or as otherwise provided in, the Agreement.
This Promissory Note is one of the Notes referred to in the
Revolving Credit Agreement dated as of _______ ___, 1998, among
the Company, the Banks named in Section 2.01 thereof, and Mellon
Bank, N.A., as Agent (as the same may from time to time be
amended or modified, the "Agreement"), which Agreement, among
other things, contains provisions for prepayments on account of
principal hereof prior to the maturity hereof and also for
acceleration of the maturity hereof upon the happening of certain
stated events, upon the terms and conditions therein specified.
Terms defined in the Agreement shall have the same meanings
herein.
The Company hereby expressly waives presentment, demand, protest,
and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this
Promissory Note and the Agreement, and an action for amounts due
hereunder or thereunder shall immediately accrue.
This Promissory Note shall be governed by, and construed and
enforced in accordance with, the laws of the Commonwealth of
Pennsylvania.
AMPCO-PITTSBURGH CORPORATION.
By: ________________________________
(Signature)
Name: _____________________________
Title: ______________________________
EXHIBIT B
Form of LOAN Request
Mellon Bank, N.A., as
Agent for the Banks Parties
to the Credit Agreement
One Mellon Bank Center, Suite
Pittsburgh, PA 15258
Attention:
Ladies & Gentlemen:
The undersigned, AMPCO-PITTSBURGH CORPORATION., refers to the 364
Day Revolving Credit Agreement dated as of _______ ___, 1998 (the
"Credit Agreement") (Terms defined in the Credit Agreement are
used herein as therein defined), among Ampco-Pittsburgh
Corporation Corp., certain Banks parties thereto, and Mellon
Bank, N.A., as agent for said Banks and hereby gives you notice,
pursuant to Section 2.04 of the Credit Agreement, irrevocably,
that the undersigned hereby requests a Set of Loans under the
Credit Agreement (the "Proposed Borrowing"), and in connection
therewith sets forth the following information relating to such
Set of Loans as required by Section 2.04 of the Credit Agreement:
(i) The Business Day on which the Proposed Borrowing is to be
made is , 199 ;
(ii) The Interest Rate Option applicable to the Proposed
Borrowing is the [Base Rate Option] [Euro-Rate Option];
(iii) The aggregate principal amount of the Proposed Borrowing
is $ ;
(iv) The Interest Period to apply to the Proposed Borrowing is [
days] [ months].
Very truly yours,
AMPCO-PITTSBURGH CORPORATION.
By:
(Signature)
Name
Title: