EX-10.26-1
EXHIBIT 10.26
This AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is dated as of
February 14, 1995, among the financial institutions listed on the signature
pages hereof (such financial institutions together with their respective
successors and assigns referred to hereinafter each individually as a
"Lender" and collectively as the "Lenders") and BANKAMERICA BUSINESS
CREDIT, INC., a Delaware corporation, as agent (the "Agent") for the
Lenders, and GREAT DANE TRAILERS, INC., a Georgia corporation ("GDT"),
GREAT DANE LOS ANGELES, INC., a Georgia corporation ("GDLA"), and GREAT
DANE TRAILERS TENNESSEE, INC., a Tennessee corporation ("GDTT") (each of
the foregoing, individually, a "Borrower" and, collectively, the
"Borrowers").
W I T N E S S E T H:
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WHEREAS, GDT, GDTT, Great Dane Trailers Indiana, Inc. ("GDTI"),
Great Dane Trailers Nebraska, Inc. ("GDTN"), certain financial institutions
(the "Original Lenders") and Security Pacific Business Credit Inc.
("SPBC"), as agent for such Original Lenders, entered into a Loan and
Security Agreement dated as of March 21, 1990 (as amended, the "Original
Agreement"); and
WHEREAS, GDTI was merged with and into GDT, the surviving
corporation, on April 3, 1990 and GDTN was merged with and into GDT as of
December 1, 1994; and
WHEREAS, GDT acquired all of the issued and outstanding voting
stock of GDLA on March 3, 1993; and
WHEREAS, GDLA became a borrower party to the Original Loan
Agreement under and pursuant to the tenth amendment thereof; and
WHEREAS, the Lenders have appointed, and GDT, GDLA and GDTT have
consented to the appointment of, BankAmerica (as defined below) to succeed
SPBC as agent for the Original Lenders under the Original Agreement
pursuant to the Succession Agreement (as defined below); and
WHEREAS, BankAmerica, as Agent, and the other parties hereto wish
to amend and restate the Original Agreement to reflect the substitution of
BankAmerica Business Credit, Inc. as Agent, to increase the commitments of
the financial institutions parties hereto, to provide for the borrowing of
Eurodollar Rate Loans (as defined below) and to make certain other changes;
NOW, THEREFORE, the parties hereto, in consideration of the
mutual conditions and agreements set forth in this Agreement, and for other
good and valuable consideration, the receipt of which is hereby
acknowledged, hereby amend and restate the Original Agreement as follows:
1. INTERPRETATION OF THIS AGREEMENT.
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1.1 DEFINITIONS. As used herein:
EX-10.26-2
"ACCOUNTS" means all of the Borrowers' now owned or hereafter
acquired or arising accounts, contract rights, and any other rights to
payment for the sale or lease of goods or rendition of services, whether or
not they have been earned by performance.
"ACCOUNT DEBTOR" means each Person obligated in any way on or in
connection with an Account.
"AFFILIATE" means: (a) any Person which, directly or indirectly,
controls, is controlled by or is under common control with, Holdings or any
Borrower; (b) any Person which beneficially owns or holds, directly or
indirectly, five percent (5.0%) or more of any class of Voting Stock of
Holdings or any Borrower; or (c) any Person, five percent (5.0%) or more of
any class of the Voting Stock (or if such Person is not a corporation, five
percent (5.0%) or more of the equity interest) of which is beneficially
owned or held, directly or indirectly, by Holdings or any Borrower.
Control (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as used herein, means the possession,
directly or indirectly, of the power in any form to direct or cause the
direction of the management and policies of the Person in question.
"AGENT" means (a)(i) prior to the effectiveness of the Succession
Agreement, SPBC and (ii) on and after the effectiveness of the Succession
Agreement, BankAmerica, in each case in its capacity as agent for the
Lenders and (b) any successor Agent appointed pursuant to SECTION 15.7.
"AGENT ADVANCES" has the meaning specified in SECTION 15.8(A).
"AGGREGATE AVAILABILITY" means, at any time of determination, (a)
the Aggregate Maximum Revolver Amount MINUS (b) the sum of (i) the unpaid
principal balance of Revolving Loans outstanding; (ii) the Letter of Credit
Obligations of all Borrowers; and (iii) the Banker's Acceptance Obligations
of Borrowers.
"AGGREGATE MAXIMUM REVOLVER AMOUNT" means, at any time, an amount
representing the aggregate amount of the Maximum Revolver Amounts with
respect to all Borrowers at such time.
"AGREEMENT" means the Original Agreement, as amended and restated
by this Amended and Restated Loan and Security Agreement, as the same may
be further amended, supplemented, restated or otherwise modified from time
to time in accordance with the terms hereof.
"AMORTIZATION FACTOR" means, at any time, the product of
(x) 60/84 times (y) a fraction, the numerator of which is one (1) and the
denominator of which equals the number of regularly scheduled consecutive
installments remaining at such time (except the final such installment),
without giving effect to any prepayments made under this Agreement, as set
forth in the Term Notes delivered pursuant to SECTION 2.1(D)(II).
"ANNIVERSARY DATE" means each annual anniversary of the Effective
Date.
"ASSIGNMENT AND ACCEPTANCE" has the meaning specified in
SECTION 14.3(A).
"ASSOCIATES" means Associates Corporation of North America, a
Delaware corporation.
EX-10.26-3
"AVAILABILITY" means, at any time of determination, with respect
to any Borrower, (a) the Maximum Revolver Amount for such Borrower MINUS
(b) the sum of (i) the unpaid principal balance of Revolving Loans
outstanding to such Borrower; (ii) the Letter of Credit Obligations of such
Borrower; (iii) the Banker's Acceptance Obligations of such Borrower.
"BABC ACCOUNT" means the Agent's account into which collections
of Accounts and other cash proceeds of collateral deposited in the
Concentration Account(s) may be transferred pursuant to the terms of the
applicable Restricted Account Agreement or otherwise as described in
SECTION 7.8.
"BA REVOLVING LOAN" and "BA REVOLVING LOANS" have the respective
meanings specified in SECTION 2.2(E).
"BANKAMERICA" means BankAmerica Business Credit, Inc., a Delaware
corporation.
"BANKER'S ACCEPTANCE" means a banker's acceptance issued or
caused to be issued for the account of a Borrower pursuant to ARTICLE 3B
which satisfy eligibility requirements established by the Board of
Governors of the Federal Reserve System from time to time and, in the case
of a Banker's Acceptance issued by a Lender, which satisfies such Lender's
internal requirements in effect from time to time.
"BANKER'S ACCEPTANCE AGREEMENT" means, with respect to a Banker's
Acceptance, such form of application therefor and form of agreement
therefor (whether in a single document or several documents), in form and
substance satisfactory to the applicable issuer of such Banker's Acceptance
and the Agent.
"BANKER'S ACCEPTANCE OBLIGATIONS" means, with respect to any
Borrower at any particular time, the sum of (a) the Banker's Acceptance
Reimbursement Obligations of such Borrower at such time, PLUS (b) the
aggregate face amount of Banker's Acceptances issued for the account of
such Borrower and outstanding at such time, PLUS (c) the aggregate face
amount of all Banker's Acceptances requested by such Borrower the issuance
of which has been authorized by the Agent pursuant to SECTION 3B.4(b) but
which have not yet been issued, in each case as determined by the Agent.
"BANKER'S ACCEPTANCE REIMBURSEMENT OBLIGATIONS" means the
reimbursement or repayment obligations of a Borrower to the Agent,
BankAmerica and/or other issuers of Banker's Acceptances pursuant to
SECTION 3B.5 or pursuant to a Banker's Acceptance Agreement with respect to
the aggregate face amount of Banker's Acceptances which have been paid by
the accepting institution in accordance with their terms.
"BANKER'S ACCEPTANCE SUBFACILITY" means that portion of the
Aggregate Maximum Revolver Amount available for the issuance of Banker's
Acceptances in an aggregate amount not to exceed $10,000,000.
"BANKRUPTCY CODE" means Title 11 of the United States Code (11
U.S.C. Section 101 et seq.).
"BENEFIT PLAN" means a defined benefit plan as defined in
Section 3(35) of ERISA (other than a Multiemployer Plan) in respect of
which any Borrower or any Related Company is, or within the immediately
preceding
EX-10.26-4
six (6) years was, an "employer" as defined in Section 3(5) of ERISA or
could have liability under Section 4069 or Section 4212(c) of ERISA.
"BOA" means Bank of America National Trust and Savings
Association, a national banking association.
"BORROWED MONEY" means, at any time, the sum of (i) all Debt then
outstanding for the principal of Loans and (ii) all scheduled principal
payments on industrial revenue or development bonds owing by any Borrower
to the extent such payments are not cash collateralized.
"BORROWER PLEDGE AGREEMENT" means the Amended and Restated Pledge
Agreement dated of even date herewith, amending and restating the Pledge
Agreement dated as of March 21, 1990, as amended by the First Amendment to
Pledge Agreement made and entered into as of November 29, 1993, executed
and delivered by GDT, pursuant to which (i) all of the issued and
outstanding capital stock of GDLA, GDTN and GDTT was, and the outstanding
capital stock of GDLA and GDTT is and will continue to be, pledged to the
Agent for the benefit of the Secured Creditors as additional security for
the Obligations, and (ii) certain promissory notes payable to GDT were and
will be and continue to be pledged to the Agent for the benefit of the
Secured Creditors as additional security for the Obligations.
"BORROWING" means a borrowing consisting of Loans made on the
same day by the Lenders (or by BankAmerica in the case of a Borrowing
funded by BA Revolving Loans) and, in the case of the Term Loans
outstanding under the Original Agreement on the Effective Date, the
extension of the maturities thereof pursuant to SECTION 2.1(a).
"BUSINESS DAY" means any day that is not a Saturday, Sunday, or
day on which banks in New York or Georgia are required or permitted to
close and, if the applicable Business Day relates to any Eurodollar Rate
Loan or Interest Period therefor, any day on which dealings are carried on
in the London interbank market.
"CAPITAL EXPENDITURES" means all payments made by or due (whether
or not paid) from a Person during such Person's fiscal year in respect of
the cost of (i) any asset which would be classified as property, plant or
equipment in accordance with the Borrower's past business practices or
included in a comparable classification on a balance sheet prepared in
accordance with GAAP, including, without limitation, any Capital Lease,
(ii) the purchase price (and all liabilities of the business so acquired
whether or not assumed by such Person in connection therewith) of any stock
acquired by such Person, and (iii) the purchase price of the assets of any
business acquired by such Person.
"CAPITAL LEASE" means any lease of Property by GDT or any of its
Subsidiaries (other than any Capital Lease having an initial present value
of less than $50,000) which, in accordance with GAAP, should be reflected
as a liability on the consolidated balance sheet of GDT and its
Subsidiaries.
"CASH COLLATERAL" means all cash and Cash Equivalents pledged to
the Agent, for the benefit of the Secured Creditors, pursuant to pledge
agreements in form and substance satisfactory to the Agent, by GDT or any
of its Subsidiaries.
"CASH EQUIVALENTS" means (a) direct obligations of the United
States of America, or any agency thereof, or obligations guaranteed by the
EX-10.26-5
United States of America; PROVIDED, HOWEVER, that such obligations mature
within one year from the date of acquisition thereof; (b) certificates of
deposit maturing within one year after the date of acquisition, banker's
acceptances, Eurodollar bank deposits, or overnight bank deposits, in each
case issued by, created by, or with a bank or trust company organized under
the laws of the United States or any state thereof, having a combined
capital, surplus and undivided profits of at least $100,000,000; or (c)
commercial paper given the highest rating by a national credit rating agency
and maturing not more than 270 days after the date of creation thereof.
"CLOSING FEE" has the meaning specified in SECTION 4.3.
"CODE" means the Internal Revenue Code of 1986, as amended and
any successor statute.
"COLLATERAL" has the meaning specified in SECTION 7.1.
"COLLATERAL RESTORATION" has the meaning specified in SECTION
10.5.
"COMMITMENT" means, at any time with respect to a Lender, such
Lender's Term Loan Commitment and Revolving Credit Commitment, and
"COMMITMENTS" means, collectively, the Term Loan Commitments and Revolving
Credit Commitments of all of the Lenders, the maximum amount of which shall
not exceed $150,000,000.
"CONCENTRATION ACCOUNTS" means the accounts maintained at any
bank or banks acceptable to the Agent which has or have executed a
Restricted Account Agreement acceptable to the Agent, into which
collections of Accounts and other cash proceeds of Collateral are
transferred from the Depositary Accounts or as otherwise described in
SECTION 7.8.
"CONTAMINANT" means any waste, pollutant, hazardous substance,
toxic substance, hazardous waste, special waste, petroleum or petroleum-
derived substance or waste, or any constituent of any such substance or
waste.
"DEBENTURES" means the Senior Subordinated Debentures and the
Subordinated Discount Debentures.
"DEBT" means all liabilities of GDT and its Subsidiaries on a
consolidated basis determined in conformity with GAAP and includable on a
balance sheet prepared in conformity with GAAP or the accompanying notes
thereto.
"DEFAULT" means any event or condition which, with the giving of
notice or the passage of time or both, would constitute an Event of
Default.
"DEFAULT RATE" means a per annum rate equal to the sum of (a) the
otherwise applicable Interest Rate, Letter of Credit Fee, Banker's
Acceptance Fee or Facility Fee, as the case may be, PLUS (b) two percent
(2.00%). The Default Rate shall be adjusted simultaneously with any change
in the applicable Interest Rate.
"DEPOSITARY ACCOUNT" means each depositary account maintained by
any Borrower.
"DISTRIBUTION" means (a) any loan, advance or other financial
accommodation made by a Borrower to or for the account of Holdings, (b) any
EX-10.26-6
fee or expense paid by a Borrower to or on behalf of Holdings, including
without limitation any fees or expenses incurred by the Borrowers in the
ordinary course of their business and paid by Holdings consisting of (i)
expenses for insurance customarily carried by the Borrowers or required by
the Agent, (ii) audit fees and expenses of Borrowers' independent public
accountants, (iii) expenses for federal and state income taxes subject to
the limitations set forth in SECTION 10.1 and (iv) required payments with
respect to the Plans identified with respect to GDT on SCHEDULES 9.10-A and
9.20-J and (c) any Dividend.
"DIVIDEND" means the payment or making of any dividend or other
distribution of property by a Borrower to Holdings in respect of capital
stock (or any options or warrants for such stock) of such Borrower,
provided, however, that the recharacterization as a dividend on the books
and records of a Borrower of any prior Distribution (which is not a
Dividend when made) to Holdings shall not constitute a "Dividend"
hereunder.
"DOL" means the United States Department of Labor or any
successor agency.
"DOLLARS" and "$" mean the lawful money of the United States of
America.
"EBITDA" means, with respect to any period of GDT and its
Subsidiaries, the sum of:
(i) the net income (or net loss) of GDT and its
Subsidiaries (determined in accordance with GAAP) for such period,
without giving effect to any GAAP extraordinary gains or losses; plus
(or minus)
(ii) to the extent that any of the items referred to in any
of clauses (A) through (D) below were deducted or added in calculating
such net income:
(A) interest expense of GDT and its Subsidiaries for such
period;
(B) federal and state income tax expense of GDT and its
Subsidiaries for such period after giving effect to any
increases or reductions in deferred income tax expense;
(C) the amount of all depreciation and amortization for
such period; and
(D) noncash charges for warranty expense and plant
closings or restructuring costs for such period; minus
(iii) the amount of cash expended in respect of any amount
which, under clause (D) above, was taken into account in determining
EBITDA for such period or any period subsequent to the Effective Date.
"EFFECTIVE DATE" means the date on which the initial Revolving
Loan is made, the initial Term Loan is made, the initial Letter of Credit
is issued or the initial Banker's Acceptance is issued under this Amended
and Restated Loan and Security Agreement.
"ELIGIBLE ACCOUNTS" means, at any time, with respect to any
Borrower, those Accounts of such Borrower which when scheduled to the Agent
EX-10.26-7
and at all times thereafter do not violate the negative covenants and other
provisions of this Agreement and do satisfy the affirmative covenants and
other provisions of this Agreement and which the Agent deems eligible as
the basis for Revolving Loans, Letters of Credit and Banker's Acceptances,
based on criteria which the Agent establishes in its reasonable credit
judgment. The Agent agrees to notify (either in writing or orally and
promptly confirmed in writing) the applicable Borrower of the reason for
deeming an Account not to be an Eligible Account if the reason for
ineligibility is not one or more of the categories identified below, but
the failure to give such notice shall not affect the Agent's right to deem
an Account ineligible. The Agent's notice (described in the immediately
preceding sentence) shall apply only to Accounts arising or created after
the date the Borrowers received such notice. No Account shall be an
Eligible Account if:
(1) It is more than ninety (90) days past the date of the
original invoice (or the properly corrected invoice date in the
case of an invoice misdated because of a clerical mistake) issued
by a Borrower with respect to the sale giving rise thereto; or
(2) It is owed by an Account Debtor with respect to which
fifty percent (50%) or more of all Accounts owing by such Account
Debtor are unpaid for more than ninety (90) days after the
date(s) of the original invoice(s) with respect to such Accounts;
or
(3) It arises out of a sale not made in the ordinary course
of a Borrower's business or to a Person which is an Affiliate of
any Borrower or controlled by an Affiliate of any Borrower,
unless such Affiliate of such Borrower or Person controlled by an
Affiliate of such Borrower has been approved in writing by the
Agent as a party from whom Eligible Accounts can be generated; or
(4) Any warranty contained in this Agreement with respect
to all Eligible Accounts or any warranty with respect to such
Account contained in this Agreement has been breached; or
(5) The Account Debtor has disputed liability, or made any
claim with respect to any Account due from such Account Debtor to
such Borrower; or
(6) The Account Debtor has filed a petition for bankruptcy
or any other petition for relief under the Bankruptcy Code or any
other bankruptcy or insolvency law or has made an assignment for
the benefit of creditors, or any petition or other application
for relief under the Bankruptcy Code or any other bankruptcy or
insolvency law has been filed against the Account Debtor, or the
Account Debtor has so filed, suspended its business operations,
become insolvent, or suffered a receiver or a trustee to be
appointed for any of its assets or affairs; or
(7) It arises out of a sale to an Account Debtor outside
the continental United States or Canada, unless the sale is on
letter of credit or acceptance terms acceptable to the Agent; or
(8) It arises out of a sale to a customer on a bill-and-
hold (other than Permitted Bill and Hold Sales), guaranteed sale,
sale-and-return, sale on approval, consignment, or any other
repurchase or return basis; or
EX-10.26-8
(9) (a) The aggregate outstanding amount of Accounts owed
by the Account Debtor exceeds $1,000,000; (b) the Agent has a
reasonable basis to believe that collection of such Account is
insecure or that such Account may not be paid by reason of the
Account Debtor's financial inability to pay; and (c) two weeks
have elapsed after the Agent has given to the Borrowers notice
(either in writing or orally and promptly confirmed in writing)
of the Agent's declaring that Accounts owed by such Account
Debtor are ineligible for the reason set forth in CLAUSE (b) of
this SUBPARAGRAPH (9);
(10) (a) The Account Debtor is a Public Authority or any
department, agency or instrumentality thereof, (b) the Account or
Accounts owed by such Account Debtor individually or in the
aggregate equal or exceed $250,000 at any time, and (c) the
applicable Borrower has not assigned its right to payment of such
Account to the Lender in accordance with the terms of the Federal
Assignment of Claims Act of 1940, as amended (31 U.S.C.
Section 3727 et seq.) or any similar statute applicable to such
Public Authority; or
(11) The goods giving rise to such Account have not been
shipped and delivered to and accepted by the Account Debtor
(other than with respect to Permitted Bill and Hold Sales) or the
services giving rise to such Account have not been performed by
the applicable Borrower and accepted by the Account Debtor; or
(12) (a) All Accounts owed by such Account Debtor exceed
$2,000,000 in the aggregate and (b) The aggregate Accounts owed
by such Account Debtor exceed a credit limit determined by the
Agent, in its reasonable discretion, at any time or times
hereafter and (c) the Agent has notified (either in writing or
orally and promptly confirmed in writing) the Borrowers of such
credit limit, but only to the extent such aggregate Accounts
exceed such credit limit; or
(13) It is an Account arising from a Permitted Bill and
Hold Sale and the goods giving rise to such Account have not been
shipped or delivered within forty-five (45) days after the date
of the original invoice issued by the applicable Borrower with
respect to the sale giving rise thereto; or
(14) It is an Account evidenced by chattel paper or
instruments unless (a) the Agent shall have specifically agreed
to include such Account as an Eligible Account, (b) only payments
then due and payable under such chattel paper or instrument shall
be included as an Eligible Account and (c) the originals of such
chattel paper or instruments have been endorsed and/or assigned
and delivered to the Agent in a manner satisfactory to the Agent;
or
(15) It is an Account which arises out of a transaction in
connection with which the applicable Borrower has obtained a bond
or other undertaking by a surety with respect to the Borrower's
performance of its obligations to the Account Debtor.
"ELIGIBLE INVENTORY" means Inventory of the applicable Borrower,
determined on a first-in-first-out basis and valued at the lower of cost or
EX-10.26-9
market value, which the Agent deems eligible as the basis for Revolving
Loans, Letters of Credit and Banker's Acceptances, based on criteria which
the Agent establishes in its reasonable credit judgment. The Agent agrees
to notify (either in writing or orally and promptly confirmed in writing)
the applicable Borrower of the reason for deeming Inventory not to be
Eligible Inventory if the reason for ineligibility is not one or more of
the categories identified below, but the failure to give such notice shall
not affect the Agent's right to deem Inventory ineligible. No Inventory
shall be Eligible Inventory if: (a) it is obsolete or unmerchantable; (b)
it is located at premises not owned by a Borrower and such Borrower has
failed (i) in the case of premises leased by such Borrower, unless the
Agent shall have established a reserve with respect to such Inventory based
upon rentals due under the applicable lease and the likelihood that such
Inventory may not be accessible to the Agent, to deliver to the Agent a
landlord waiver in form and substance acceptable to the Agent and (ii) in
the case of Inventory held by a bailee and for which a negotiable
instrument has not been issued, to (A) cause to be filed a financing
statement or financing statements which (1) name the third party bailee as
the debtor/bailee, (2) name such Borrower as the secured party/bailor, (3)
name the Agent as the assignee of the secured party/bailor, and (4) contain
a description of such Inventory acceptable to the Agent and otherwise
comply with the requirements of Section 9-304(3) of the UCC and (B) take
such other steps as the Agent may reasonably request in order to establish
and preserve the priority of the Agent's lien on such Inventory against se-
cured creditors of the third party bailee or of such Borrower; (c) it is
not subject to a first priority perfected security interest in favor of the
Agent for the ratable benefit of the Secured Creditors; (d) it is raw
materials of the type shown on GDT inventory as codes 21 and 22 as coded on
the Effective Date (PROVIDED, HOWEVER, that any fabricated assemblies,
fabricated parts or spare parts in these inventory codes which are held by
the Borrowers for sale as replacement parts shall not be covered by this
exclusion), work-in-process (other than work-in-process described on
SCHEDULE 1.1-G), tooling, packaging and shipping materials, or supplies; or
(e) it is bill-and-hold Inventory, returned or defective Inventory, or
Inventory delivered to a Borrower on consignment.
"ENVIRONMENTAL COMPLIANCE RESERVE" means any reserve which the
Agent establishes from time to time for Remedial Action which exceeds
$750,000 in the aggregate as determined by the independent environmental
engineer retained pursuant to SECTION 10.7.
"ENVIRONMENTAL LAWS" means all federal, state and local laws,
rules, regulations, ordinances, programs, permits, guidance, orders and
consent decrees relating to health, safety, hazardous substances, and
environmental matters applicable to any Borrower and/or its business and
facilities (whether or not owned by it). Such laws and regulations include
but are not limited to the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq., as amended; the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.,
as amended; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et
seq., as amended; the Clean Water Act, 42 U.S.C. Section 466 et seq., as
amended; the Clean Air Act, 46 U.S.C. Section 7401 et seq., as amended; and
state and federal lien and environmental cleanup programs.
"ENVIRONMENTAL LIEN" means a Lien in favor of any governmental
entity for (1) any liability under federal or state environmental laws or
regulations, or (2) damages arising from, or costs incurred by such
governmental entity in response to, a Release or threatened Release of
Contaminant into the environment.
EX-10.26-10
"EQUIPMENT" means all of the Borrowers' now owned and hereafter
acquired machinery, equipment, office equipment, furniture, furnishings,
fixtures, and other tangible personal property (except Inventory),
including, without limitation, motor vehicles, aircraft, vessels, dies,
tools, jigs, and office equipment; together with all present and future
additions and accessions thereto, replacements therefor, component and
auxiliary parts and supplies used or to be used in connection therewith,
and all substitutes for any of the foregoing, and all manuals, drawings,
instructions, warranties and rights with respect thereto, wherever any of
the foregoing is located.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"EURODOLLAR RATE" means, for each Interest Period in respect of
any Eurodollar Rate Loan, an interest rate per annum (rounded upward to the
nearest 1/16th of 1%) determined pursuant to the following formula:
LIBOR
Eurodollar Rate = --------------------------------------------
1.00 minus the Eurodollar Reserve Percentage
Where:
"EURODOLLAR RESERVE PERCENTAGE" means the maximum reserve
percentage (expressed as a decimal, rounded upward to the nearest
1/100th of 1%) in effect on the date LIBOR for such Interest Period is
determined (whether or not applicable to BOA) under regulations issued
from time to time by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities") having a
term comparable to such Interest Period; and
"LIBOR" means the rate of interest per annum determined by BOA to
be the arithmetic mean (rounded upward, if necessary, to the nearest
one-hundredth of one percent (1/100%)) of the rates of interest per
annum notified to BOA as the rate of interest at which dollar deposits
in an amount approximately equal to the amount of the Revolving Loan
to be made or continued as, or converted into, a Eurodollar Rate Loan
by the Lenders and having a maturity equal to such Interest Period
would be offered to major banks in the London interbank market at
their request at or about 11:00 a.m. (London time) on the second
Business Day before the commencement of such Interest Period.
"EURODOLLAR RATE LOAN" means a Loan bearing interest based on the
Eurodollar Rate in accordance with ARTICLE 2.
"EVENT OF DEFAULT" has the meaning specified in SECTION 12.1.
"EXCHANGE OFFER" means an offer by Holdings to the holders of the
Debentures to exchange all or a portion of the Debentures for newly issued
Securities of Holdings.
"EXCHANGE OFFER DOCUMENTS" means all documents transmitted to the
holders of the Debentures or filed with the SEC in connection with an
Exchange Offer.
EX-10.26-11
"EXCLUDED TAXES" means franchise taxes and taxes upon or
determined by reference to any Lender's net income, gross receipts, or net
worth, in each case, imposed by the United States of America or any
political subdivision or taxing authority thereof or therein (including
without limitation any state or locality thereof or therein) or by any
jurisdiction in which the lending office or other branch of any Lender is
located, is resident or in which any Lender is organized or has its
principal or registered office (including, without limitation, branch taxes
imposed by the United States or similar taxes imposed by any subdivision
thereof or therein).
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in
the daily statistical release designated as H.15(519), or any successor
publication, published by the Board of Governors of the Federal Reserve
System on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean, as
determined by the Agent, of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that day
by each of three leading brokers of Federal funds transactions in New York
City selected in good faith by the Agent.
"FINANCIAL STATEMENTS" means, according to the context in which
it is used, the financial statements attached hereto as SCHEDULE 1.1-A, or
the pro forma balance sheet attached hereto as SCHEDULE 1.1-B, or any
financial statements required to be given to the Lenders pursuant to
SECTIONS 8.2(a), (b), and (c), or any combination thereof.
"FISCAL YEAR" means the fiscal year for financial accounting
purposes of each of the Borrowers, which shall end on December 31 of each
calendar year.
"FLOOR PLAN FINANCER" means Associates or any predecessor thereto
or successor thereto, or any other person providing floor plan financing to
Independent Dealers (as such term is defined in the Operating Agreement to
which Associates is a party on the date of this Agreement) or retail
financing to Great Dane Customers (as such term is or was defined in the
Operating Agreement) under a Floor Plan Financing Agreement, in each case
on the terms and subject to the conditions set forth in this Agreement.
"FLOOR PLAN FINANCING AGREEMENTS" means, collectively, the
Operating Agreements from time to time in effect, the Stock Purchase
Agreement among GDT, ICC and Associates dated as of August 15, 1988 and the
Tradename Agreement between GDT and Great Dane Financing Company dated as
of August 31, 1988.
"FLOOR PLAN ACCOUNTS" means Eligible Accounts which are owed by
Account Debtors who have a floor plan agreement or similar financing
arrangement with a Floor Plan Financer.
"FUNDING DATE" means the date on which any Term Loan or Revolving
Loan is to be made, continued or converted hereunder or the date on which
any Letter of Credit or Banker's Acceptance is issued hereunder.
"GAAP" means at any particular time with respect to GDT and its
Subsidiaries, generally accepted accounting principles as in effect at such
time, consistently applied.
EX-10.26-12
"GENERAL INTANGIBLES" means all of each Borrower's now owned or
hereafter acquired general intangibles, choses in action and causes of
action and all other intangible personal property of such Borrower of every
kind and nature (other than Accounts), including, without limitation, all
Proprietary Rights, corporate or other business records, inventions,
designs, blueprints, plans, specifications, patents, patent applications,
trademarks, trade names, trade secrets, goodwill, copyrights, computer
software, customer lists, registrations, licenses, franchises, tax refund
claims, Reversions or any rights thereto and any other amounts payable to
such Borrower from any Plan or other employee benefit plan, rights and
claims against carriers and shippers, rights to indemnification, business
interruption insurance and proceeds thereof, property, casualty or any
similar type of insurance and any proceeds thereof, proceeds of insurance
covering the lives of key employees on which such Borrower is beneficiary,
and any letter of credit, guarantee, claim, security interest or other
security held by or granted to any Borrower to secure payment by an account
debtor of any of the Accounts.
"GEORGIA INTANGIBLES TAX" means the tax imposed under the
provisions of Section 48-6-61 of the Official Code of Georgia Annotated, as
it exists on each Term Funding Date.
"GUARANTOR" means any Person (other than a Borrower) who is
primarily or secondarily liable on any of the Obligations or who grants to
the Agent a Lien on any property of such Person as security for any of the
Obligations.
"GUARANTY" means, with respect to any Person, all obligations of
such Person which in any manner directly or indirectly guarantee or assure,
or in effect guarantee or assure, the payment or performance of any
indebtedness, dividend or other obligation of any other Person (the "guar-
anteed obligations"), or to assure or in effect assure the holder of the
guaranteed obligations against loss in respect thereof, including, without
limitation, any such obligations incurred through an agreement, contingent
or otherwise: (a) to purchase the guaranteed obligations or any property
constituting security therefor; (b) to advance or supply funds for the
purchase or payment of the guaranteed obligations or to maintain a working
capital or other balance sheet condition; (c) to lease property or to
purchase any debt or equity securities or other Property or services.
"HOLDINGS" means Great Dane Holdings Inc., a Delaware
corporation, formerly known as International Controls Corp.
"HOLDINGS CONTROLLING SHAREHOLDERS" means any one or more of the
following individuals: Allan R. Tessler, David R. Markin, Martin L.
Solomon, Wilmer J. Thomas, Jr. and with respect to each of the foregoing
Persons a lineal descendent of such Person or the surviving spouse of such
Person.
"HOLDINGS STOCK AGREEMENT" means that certain Amended and
Restated Agreement Regarding Stock and Other Matters dated as of the
Effective Date, in form and substance satisfactory to the Lenders, executed
and delivered by Holdings and the Borrowers to the Agent for the benefit of
the Secured Creditors, which amends and restates the Agreement Regarding
Stock and Other Matters dated as of March 21, 1990 executed and delivered
by ICC and the other parties thereto for the benefit of the Secured
Creditors.
"ICC" means International Controls Corp., a Florida corporation,
which was reincorporated in the State of Delaware through a merger with its
EX-10.26-13
wholly-owned subsidiary, Holdings, with Holdings being the surviving
corporation.
"INDENTURES" means, collectively, the Senior Subordinated
Debenture Indenture and the Subordinated Discount Debenture Indenture.
"INITIAL TERM FUNDING DATE" means the Term Funding Date which
shall occur on the Effective Date and on which the Lenders shall, subject
to the terms and conditions of this Agreement, make a portion of the New
Term Loan Funding available to GDT based on Equipment (other than Terre
Haute Equipment) and Real Estate appraisals received and reviewed by, and
in form and substance satisfactory to, the Agent and each Lender prior to
such Term Funding Date.
"INTERCOMPANY ACCOUNTS" means all assets and liabilities, however
arising, which are due to a Borrower from, which are due from a Borrower
to, or which otherwise arise from any transaction by a Borrower with, any
Affiliate, including, without limitation, all Distributions of the type
described in clause (a) of the definition thereof.
"INTEREST PAYMENT DATE" means: (a) with respect to any Reference
Rate Loan, the first Business Day of each month, commencing on the first
day of the first month following the Effective Date; (b) with respect to
any Eurodollar Rate Loan, the last day of the Interest Period applicable
thereto, and in the case of any Eurodollar Rate Loan having an Interest
Period of six (6) months, the day which is three months after the Funding
Date of such Eurodollar Rate Loan; and (c) the Termination Date.
"INTEREST PERIOD" means, with respect to any Eurodollar Rate
Loan, the period commencing on the Funding Date of such Eurodollar Rate
Loan and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that
is one (1), two (2), three (3) or six (6) months thereafter, as the
Borrower may (subject in all cases to availability) elect with respect to
Eurodollar Rate Loans; PROVIDED, HOWEVER, that (v) if any Interest Period
would otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such
next succeeding Business Day falls in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day, (w)
any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month, (x) no Interest Period with respect
to any Term Loans (or any Portion or Portions thereof) being maintained as
Eurodollar Rate Loans may extend beyond a date on which GDT is required to
make a scheduled payment of principal of the Term Loans unless the
aggregate principal amount of Term Loans (or any Portion or Portions
thereof) with Interest Periods expiring on or before such date equals or
exceeds the principal amount required to be paid on the Term Loans on such
date, (y) no Interest Period shall end later than the last day of the
scheduled term of this Agreement, and (z) interest shall accrue from and
including the first day of an Interest Period to but excluding the last
Business Day of such Interest Period.
"INTEREST RATE" means each or any of the interest rates,
including the Default Rate, set forth in SECTION 4.1.
"INVENTORY" means all of the Borrowers' now owned and hereafter
acquired inventory, goods, merchandise, and other such personal property,
EX-10.26-14
wherever located, to be furnished under any contract of service or held for
sale or lease, all returned goods, and materials and supplies of any kind,
nature or description which are or might be consumed in the Borrowers'
businesses or used in connection with the packing, shipping, advertising,
selling or finishing of such goods, merchandise and such other personal
property, and all documents of title or other documents representing them.
"IRS" means the Internal Revenue Service or any successor agency.
"LATEST PROJECTIONS" means: (a) on the Effective Date and
thereafter until the Lenders receive new projections pursuant to
SECTION 8.2(e), the projections of GDT and its Subsidiaries, on a
consolidated basis, monthly financial condition, results of operations, and
cash flow for the 1995 calendar year, attached hereto as SCHEDULE 1.1-C;
and (b) thereafter, the projections most recently received by the Lenders
pursuant to SECTION 8.2(e).
"L/C SUBFACILITY" means that portion of the Aggregate Maximum
Revolver Amount available for the issuance of Letters of Credit in an
aggregate amount not to exceed $20,000,000.
"LETTER OF CREDIT" means a Standby Letter of Credit or a
Merchandise Letter of Credit issued or caused to be issued for the account
of a Borrower pursuant to ARTICLE 3.
"LETTER OF CREDIT OBLIGATIONS" means, with respect to any
Borrower at any particular time, the sum of (a) the Letter of Credit
Reimbursement Obligations of such Borrower at such time, PLUS (b) the
aggregate maximum amount available for drawing under outstanding Letters of
Credit issued for the account of such Borrower at such time, PLUS (c) the
aggregate maximum amount available for drawing under Letters of Credit
requested by such Borrower the issuance of which has been authorized by the
Agent pursuant to SECTION 3A.4(b) but which have not yet been issued, in
each case as determined by the Agent.
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT" means, with respect to
a Letter of Credit, such form of application therefor and form of agreement
therefor (whether in a single document or several documents), in form and
substance satisfactory to the applicable issuer of such Letter of Credit
and the Agent.
"LETTER OF CREDIT REIMBURSEMENT OBLIGATIONS" means the
reimbursement or repayment obligations of a Borrower to the Agent and/or
other issuers of Letters of Credit pursuant to SECTION 3A.5 or pursuant to
a Letter of Credit Reimbursement Agreement with respect to amounts which
have been drawn under Letters of Credit in accordance with their terms.
"LIEN" means: (a) any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the common law, statute, or
contract, and including without limitation, a security interest, charge,
claim, or lien arising from a mortgage, deed of trust, encumbrance, pledge,
hypothecation, assignment, deposit arrangement, agreement, security
agreement, conditional sale or trust receipt or a lease, consignment or
bailment for security purposes; and (b) to the extent not included under
clause (a), any reservation, exception, encroachment, easement, right-of-
way, covenant, condition, restriction, lease or other title exception or
encumbrance affecting Property.
EX-10.26-15
"LOAN" means a Term Loan or a Revolving Loan (including a BA
Revolving Loan).
"LOAN ACCOUNT" has the meaning specified in SECTION 3A.10.
"LOAN DOCUMENTS" means this Agreement, the Term Notes, the Trade-
mark Agreement, the Patent Agreement, the Borrower Pledge Agreement, the
Holdings Stock Agreement, the Succession Agreement, the Mortgages, the
Mortgage Amendment Documents and all other agreements, instruments, and
documents heretofore, now or hereafter evidencing, securing, guaranteeing
or otherwise relating to the Obligations, the Collateral, the Real Estate,
or any other aspect of the transactions contemplated by this Agreement.
"MAJORITY LENDERS" means, at any time, Lenders whose Pro Rata
Shares aggregate (i) sixty-seven percent (67%) or more, so long as the Pro
Rata Share of NationsBank of Georgia, N.A., is thirty-three and 3333/10,000
percent (33.3333%) or more of the Commitments, (ii) more than fifty percent
(50%) if the Pro Rata Share of NationsBank of Georgia, N.A., is less than
the percentage described in clause (i) above and (iii) if no Commitments
are outstanding at such time, Lenders holding sixty-seven percent (67%) or
more than fifty percent (50%), as the case may be, based on the last
Commitments outstanding prior to such time, of the Loans outstanding at
such time and participation interests in Letter of Credit Obligations and
Banker's Acceptance Obligations outstanding at such time.
"MARKET PURCHASE" means a purchase by Holdings of Debentures, in
privately negotiated transactions, on the American Stock Exchange or in the
over-the-counter market.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon
(i) the business, assets or other properties, liabilities or condition
(financial or otherwise), results of operations or prospects of the
Borrowers and their Subsidiaries, taken as a whole, (ii) the ability of the
Borrowers to perform in any material respect any of their obligations under
the Loan Documents, or (iii) the priority or value of the Collateral or the
Real Estate subject to a Mortgage in Brazil, Indiana, Savannah, Georgia or
Wayne, Nebraska.
"MAXIMUM REVOLVER AMOUNT" means, at any time, for any Borrower,
(a) the lesser of:
(i) the total amount of the Revolving Credit Commitments as such
Revolving Credit Commitments may be reduced pursuant to SECTION
5.2; or
(ii) the sum of:
(A) up to eighty-five percent (85%) (in the Agent's
reasonable credit judgment) of the value of Eligible
Accounts of such Borrower other than Floor Plan Accounts,
(B) the lesser of (1) $2,000,000 or (2) up to twenty
percent (20%) (in the Agent's reasonable credit judgment)
of the value of Floor Plan Accounts owed to such Borrower,
and
(C) the lesser of:
EX-10.26-16
(1) $50,000,000; PROVIDED, HOWEVER, that if such
Borrower is GDTT or GDLA, the maximum amount available
to such Borrower under this subsection (C) shall be
limited to $3,000,000 with respect to each of GDTT or
GDLA, as the case may be, or
(2) the sum of (x) sixty percent (60%) of the value of
such Borrower's Eligible Inventory other than Eligible
Inventory consisting of used Inventory and (y) the
lesser of (I) $5,000,000 or (II) sixty percent (60%)
of the value of such Borrower's Eligible Inventory
consisting of used Inventory; MINUS
(b) the sum of:
(i) reserves established by the Agent for accrued interest on
the Revolving Loans;
(ii) reserves established by the Agent because one or more
Account Debtors have not entered into an agreement with the Agent
which is acceptable to the Agent with respect to the waiver of
its right of set-off when:
(A) one or more of the Accounts owed by the applicable
Account Debtors are Eligible Accounts,
(B) such Account Debtors have a creditor relationship with
any Borrower, and
(C) the aggregate amount of the potential set-off is
$250,000 or more;
(iii) Environmental Compliance Reserves; and
(iv) all other reserves which the Agent reasonably establishes
(A) with respect to any failure (whether or not a cure or grace
period is provided herein) by the Borrowers to comply with the
terms, provisions, affirmative and negative covenants and other
agreements contained in this Agreement or any of the other Loan
Documents and (B) pursuant to SECTIONS 10.5 and 10.6.
The Agent agrees to give GDT oral (to be promptly confirmed in writing) or
written notice prior to establishing any reserve pursuant to CLAUSE (b) of
this definition of Maximum Revolver Amount but the failure to give such
notice shall not affect the Agent's right to establish such reserve. The
Agent shall compute the Maximum Revolver Amount for each week on the later
of (A) the Agent's receipt of the documents required to be delivered by the
Borrowers during such week pursuant to SECTION 7.7(a) and (B) the first
(1st) Business Day of such week, and the Maximum Revolver Amount so
computed shall remain in effect until recomputed on the later of (1) the
Agent's receipt of the documents required to be delivered by the Borrowers
during the next week pursuant to SECTION 7.7(a) and (2) the first (1st)
Business Day of the next week.
"MERCHANDISE LETTER OF CREDIT" means a documentary Letter of
Credit issued for the account of the Borrower to provide the intended means
of making payment when due by the Borrower for the purchase of Inventory
and available for drawing against presentation of, inter alia, negotiable
documents of title covering such Inventory.
EX-10.26-17
"MORTGAGE AMENDMENT DOCUMENTS" has the meaning specified in
SECTION 7.1(b)(ii)(y).
"MORTGAGES" means all real property fee mortgages, leasehold
mortgages, assignments of leases, mortgage deeds, deeds of trust, deeds to
secure debt, security agreements, and other similar instruments entered
into in connection with the Original Agreement and now and hereafter
entered into which provide the Agent, for the benefit of the Secured
Creditors, a Lien on or other interest in any portion of the Premises or
the Real Estate or which relate to any such Lien or interest.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Borrower or a Related Company
contributes, is required to contribute, or has contributed within the
immediately preceding six (6) years or with respect to which any Borrower
or a Related Company could have liability under Section 4212(c).
"NET COLLATERAL VALUE" means, with respect to any Equipment or
Real Estate, the value, if any, assigned to such Equipment or Real Estate
in the appraisals received and reviewed by, and in form and substance
satisfactory to, the Agent and each Lender with respect to such Equipment
or Real Estate.
"NEW TERM LOAN FUNDING" shall mean the Term Loans to be made
hereunder on each Term Funding Date in an amount equal to Term Loan
Commitments on such Term Funding Date.
"NOTICE OF BORROWING" means a notice substantially in the form of
EXHIBIT A in the case of the Borrowing of Revolving Loans on the Effective
Date, or a notice substantially in the form of EXHIBIT B in the case of the
Borrowing of Term Loans on each Term Funding Date.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of EXHIBIT F with respect to the conversion of Reference Rate
Loans to Eurodollar Rate Loans or Eurodollar Rate Loans to Reference Rate
Loans, as the case may be, or a continuation of Reference Rate Loans or
Eurodollar Rate Loans as such, as the case may be.
"OBLIGATIONS" means all present and future loans, advances,
liabilities, obligations, covenants, duties, and debts, including Letter of
Credit Obligations and Banker's Acceptance Obligations, owing by each of
the Borrowers to the Lenders and/or the Agent, arising under or relating to
this Agreement, any other Loan Document, any Letter of Credit or any
Banker's Acceptance, whether or not evidenced by any note, or other
instrument or document, whether arising from an extension of credit,
opening of a letter of credit, acceptance, loan, guaranty, indemnification
or otherwise, whether direct or indirect (including, without limitation,
those acquired by assignment from others, and any participation by the
Lenders in any of the Borrowers' debts owing to others), absolute or
contingent, due or to become due, primary or secondary, as principal or
guarantor, and including, without limitation, all interest, charges,
expenses, fees, attorneys' fees, filing fees and any other sums chargeable
to any of the Borrowers hereunder, under another Loan Document, or under
any other agreement or instrument with the Lenders and/or the Agent.
"OPERATING AGREEMENT" means the Amended and Restated Operating
Agreement between GDT and Great Dane Finance Company, dated as of August
31, 1988. In the event that (a) the Operating Agreement expires or
otherwise terminates and (b) GDT enters into any other agreement or
agreements which
EX-10.26-18
provides or provide for floor plan financing to Independent Dealers (as
such term is defined in the Operating Agreement in effect on the date of
this Agreement) or retail financing to Great Dane Customers (as such term
is defined in the Operating Agreement in effect on the date of this
Agreement), in each case for the same purposes provided in the Operating
Agreement, with any Person or Persons, in each case acceptable to the
Majority Lenders, "Operating Agreement" shall be deemed to mean such other
agreement or agreements.
"ORIGINAL TERM LOANS" shall mean any and all Term Loans made
pursuant to the Original Agreement and outstanding as of the Effective
Date.
"OVER ADVANCES" has the meaning specified in SECTION 2.3. All
Over Advances shall constitute Revolving Loans hereunder and shall be
subject to all the terms and conditions applicable to other Revolving
Loans.
"PARTICIPANT" means any Person who shall have been granted the
right by any Lender to participate in the financing provided pursuant to
this Agreement and who shall have entered into a participation agreement in
form and substance satisfactory to such Lender pursuant to the provisions
of SECTION 14.3(e).
"PATENT AGREEMENT" means the Patent Security Agreement dated of
even date herewith, executed and delivered by GDT to the Agent pursuant to
SECTION 7.2 to evidence and perfect the Agent's security interest in GDT's
patents and related licenses and rights as provided therein.
"PBGC" means the Pension Benefit Guaranty Corporation or any
Person succeeding to the functions thereof.
"PERMITTED BILL AND HOLD SALES" means any sale of Inventory made
by any Borrower in the ordinary course of its business with respect to
which the goods which are the subject matter of the sale are located on the
Borrowers' premises.
"PERMITTED LIENS" means:
(a) Liens for taxes not yet payable, or statutory Liens for
taxes in an amount not to exceed $100,000 provided that the payment of such
taxes which are due and payable is being contested in good faith and by
proper proceedings diligently pursued, and that reserves or other
appropriate provision, if any, as shall be required by GAAP shall have been
made therefor and that a stay of enforcement of any such Lien is in effect;
(b) Liens in favor of the Agent for the benefit of the Secured
Creditors;
(c) Liens upon Equipment granted or assumed in connection with
the acquisition of such Equipment by any Borrower after the Effective Date
(including, without limitation, pursuant to Capital Leases), PROVIDED that
(i) the Debt incurred to finance each such acquisition is permitted by
SECTION 10.13, and (ii) each such Lien attaches only to the Equipment
acquired with the Debt secured thereby;
(d) deposits under workmen's compensation, unemployment
insurance, social security and other similar laws, or to secure the
performance of bids, tenders or contracts (other than for the repayment of
borrowed money) or to secure indemnity, performance or other similar bonds
for the performance of
EX-10.26-19
bids, tenders or contracts (other than for the repayment of borrowed money)
or to secure statutory obligations or surety or appeal bonds, or to secure
indemnity, performance or other similar bonds in the ordinary course of
business;
(e) Liens which arise by operation of law under Article 2 of the
Uniform Commercial Code in favor of unpaid sellers of goods or prepaying
buyers of goods, or liens in items of any accompanying documents or
proceeds of either arising by operation of law under Article 4 of the
Uniform Commercial Code in favor of a collecting bank;
(f) Liens arising by operation of law securing the claims or
demands of materialmen, mechanics, carriers, warehousemen, landlords and
other like Persons, PROVIDED that the payment thereof is not at the time
required by SECTION 10.1;
(g) Liens reflected on SCHEDULE 1.1-D hereto; and
(h) Liens for assessments or governmental charges or claims not
yet due other than Environmental Liens.
"PERSON" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association,
corporation, Public Authority, or any other entity.
"PLAN" means any employee benefit plan as defined in Section 3(3)
of ERISA in respect of which any Borrower or any Related Company is, or
within the immediately preceding six (6) years was, an "employer" as
defined in Section 3(5) of ERISA or could have liability under Section 4069
or Section 4212(c) of ERISA.
"PORTION" means, when used in relation to a Borrowing consisting
of Term Loans, a portion thereof in an amount of not less than each
Lender's Pro Rata Share of the next monthly installment payable under each
Term Loan then outstanding, designated by GDT as consisting of Term Loans
which are of the same type and which have the same Interest Period.
"PREMISES" means the land identified by addresses on SCHEDULE
1.1-E, together with all buildings, improvements, and fixtures thereon and
all tenements, hereditament, and appurtenances belonging or in any way
appertaining thereto, and which constitutes substantially all of the real
property in which any Borrower has any interests on the Effective Date.
"PRO RATA SHARE" means, at any time with respect to a Lender, a
fraction (expressed as a percentage), the numerator of which is the amount
of such Lender's Commitment at such time and the denominator of which is
the sum of all of the Lenders' Commitments at such time.
"PROPERTY" means any real or personal property, plant, building,
facility, structure, underground storage tank, equipment or unit, or other
asset owned, leased or operated by GDT or any of its Subsidiaries,
including, without limitation, GDT's or any such Subsidiary's Equipment,
Inventory and Real Estate.
"PROPRIETARY RIGHTS" means all of the Borrowers' now owned and
hereafter arising or acquired: patents, patent rights, copyrights, works
which are the subject matter of copyrights, trademarks, service marks,
trade names, trade styles, patent, trademark and service mark applications,
and all
EX-10.26-20
licenses and rights related to any of the foregoing, including, without
limitation, those patents, trademarks, service marks and copyrights set
forth on SCHEDULE 1.1-F hereto, and all other rights under any of the
foregoing, all extensions, renewals, reissues, divisions, continuations,
and continuations-in-part of any of the foregoing, and all rights to sue
for past, present and future infringement of any of the foregoing.
"PUBLIC AUTHORITY" means the government of any country or
sovereign state, or of any state, province, municipality, or other
political subdivision thereof, or any department, agency, public
corporation or other instrumentality of any of the foregoing.
"REAL ESTATE" means all of the present and future interests of
each Borrower as owner, lessee, or otherwise, in the Premises, including,
without limitation, any interest arising from an option to purchase or
lease the Premises or any portion thereof.
"REAL ESTATE TERM FUNDING DATE" means the Term Funding Date which
shall occur after the Initial Term Funding Date and on which the Lenders
shall, subject to the terms and conditions of this Agreement, make all or a
portion of the New Term Loan Funding available to GDT based on Real Estate
appraisals received and reviewed by, and in form and substance satisfactory
to, the Agent and each Lender on or after the Initial Term Funding Date and
before such Real Estate Term Funding Date.
"REDEMPTION" means any redemption, purchase, repurchase or other
reacquisition by Holdings of a Debenture by means of or pursuant to a
Market Purchase, a Tender Offer or an Exchange Offer, or any combination
thereof.
"REFERENCE RATE" means the rate of interest publicly announced
from time to time by BOA in San Francisco, California, as its reference
rate. The Reference Rate is a rate set by BOA based upon various factors
including BOA's costs and desired return, general economic conditions, and
other factors, and is used as a reference point for pricing some loans.
BOA may price loans at, above or below the Reference Rate. Any change in
the Reference Rate shall take effect on the day specified in the public
announcement of such change.
"REFERENCE RATE LOAN" means a Loan bearing interest based on the
Reference Rate in accordance with ARTICLE 2.
"REGISTER" has the meaning specified in SECTION 14.3(c).
"RELATED COMPANY" means any (i) corporation which is a member of
the same controlled group of corporations (within the meaning of
Section 414(b) of the Code or Section 4001 of ERISA) as any Borrower; (ii)
partnership or other trade or business (whether or not incorporated) under
common control (within the meaning of Section 414(c) of the Code or Section
4001 of ERISA) with any Borrower; or (iii) member of the same affiliated
service group (within the meaning of Section 414(m) or (o) of the Code) as
any Borrower, any corporation described in clause (i) above or any
partnership, trade or business described in clause (ii) above.
"RELEASE" means release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration
into the indoor or outdoor environment or into or out of any Property,
including the movement of Contaminants through or in the air, soil, surface
water, groundwater or Property.
EX-10.26-21
"REMEDIAL ACTION" means actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants so they do not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment; or (iii) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"RENTALS" means all payments due from the lessee or sublessee
under a lease or sublease, including, without limitation, basic rent and
percentage rent but excluding from the foregoing payments arising from (a)
leases with an original term of less than one year and (b) leases which by
their terms can be terminated by the applicable Borrower upon notice of
thirty (30) days or less without premium or penalty.
"REPORTABLE EVENT" has the meaning ascribed to that term in
Section 4043 of ERISA or the regulations promulgated thereunder.
"REQUIREMENTS OF LAW" means any foreign, federal, state or local
law, rule or regulation, permit, or other binding determination of any
Public Authority.
"RESTRICTED ACCOUNT AGREEMENT" has the meaning specified in
SECTION 7.8(b).
"RESTRICTED INVESTMENT" means any acquisition of property by GDT
or any of its Subsidiaries in exchange for cash or other property, whether
in the form of an acquisition of stock, debt security, or other
indebtedness or obligation, or the purchase or acquisition of any other
property, or by loan, advance, capital contribution, or subscription,
except acquisitions of the following: (a) businesses similar to the
business of GDT and its Subsidiaries as conducted on the Effective Date
acquired by purchasing either assets or stock so long as the acquisition
costs thereof (including all liabilities of the business so acquired
whether or not assumed by any Borrower in connection therewith) constitute
Capital Expenditures permitted hereunder; (b) goods held for sale or lease
or to be used in the provision of services by GDT or one of its
Subsidiaries in the ordinary course of business; (c) current assets arising
from the sale or lease of goods or the rendition of services in the
ordinary course of business of GDT or one of its Subsidiaries; (d) direct
obligations of the United States of America, or any agency thereof, or
obligations guaranteed by the United States of America, PROVIDED that such
obligations mature within one year after the date of acquisition thereof;
(e) certificates of deposit maturing within one year after the date of
acquisition, bankers' acceptances, Eurodollar bank deposits, or overnight
bank deposits, in each case issued by, created by, or with a bank or trust
company organized under the laws of the United States or any state thereof
having a combined capital, surplus and undivided profits of at least
$100,000,000; (f) commercial paper given the highest rating by a national
credit rating agency and maturing not more than 270 days after the date of
creation thereof; (g) Distributions of the type described in clause (a) of
the definition thereof and permitted under this Agreement; and (h) Capital
Expenditures permitted under this Agreement.
"REVERSIONS" means any funds which may become due to any Borrower
in connection with the termination of any Plan or other employee benefit
plan.
EX-10.26-22
"REVOLVER FACILITY" means the revolving credit facility provided
for in SECTION 2.2.
"REVOLVING CREDIT COMMITMENT" means, with respect to each Lender,
on any date, an amount equal to the amount set forth beside such Lender's
name under the heading Revolving Credit Commitment on the signature pages
of this Agreement or, after an assignment pursuant to SECTION 14.3, shown
for such Lender in the Register, less, in each case, any Term Loans made by
such Lender and then outstanding or to be made on such date, and "Revolving
Credit Commitments" shall, collectively, mean the aggregate amount of the
Revolving Credit Commitments of all the Lenders which, as of any date,
equals $150,000,000 less any Term Loans then outstanding or to be made on
such date.
"REVOLVING CREDIT TERMINATION DATE" means the earliest of (i) the
fifth Anniversary Date, (ii) the date of termination in whole of the
Revolving Credit Commitments pursuant to SECTION 5.2, and (iii) the date of
termination of the Commitments pursuant to SECTION 12.2.
"REVOLVING LOANS" has the meaning specified in SECTION 2.2(a).
"RULING" means the ruling referred to in SECTION 10.33(a).
"SECURED CREDITORS" means, collectively, the Agent and the
Lenders including, without limitation, BankAmerica with respect to the BA
Revolving Loans, BOA, to the extent it is an issuer of a Letter of Credit
or issuer of a Banker's Acceptance, and any other Person entitled to
indemnification pursuant to the terms of this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
"SECURITY" has the meaning specified in Section 2(1) of the
Securities Act.
"SENIOR SUBORDINATED DEBENTURE INDENTURE" means the Indenture
dated as of August 1, 1986 between ICC and First Fidelity Bank, National
Association, New Jersey, as amended by the First Supplemental Indenture
dated as of October 19, 1994 among ICC, Holdings and First Fidelity Bank,
National Association.
"SENIOR SUBORDINATED DEBENTURES" means the Senior Subordinated
Debentures due August 1, 2001 issued pursuant to the Senior Subordinated
Debenture Indenture.
"SOLVENT" or "SOLVENCY" means when used with respect to any
Person that (a) the fair value of all its Property is in excess of the
total amount of its debts (including contingent liabilities); (b) it is
able to pay its debts as they mature; (c) it does not have unreasonably
small capital for the business in which it is engaged or for any business
or transaction in which it is about to engage; and (d) it is not
"insolvent" as such term is defined in Section 101 of the Bankruptcy Code.
"STANDBY LETTER OF CREDIT" means any Letter of Credit other than
a Merchandise Letter of Credit.
EX-10.26-23
"SUBORDINATED DISCOUNT DEBENTURE INDENTURE" means the Indenture
dated as of December 27, 1985 between ICC and Midlantic National Bank, as
Trustee, as amended by the First Supplemental Indenture dated as of October
19, 1994 among ICC, Holdings and Midlantic National Bank.
"SUBORDINATED DISCOUNT DEBENTURES" means the Subordinated
Discount Debentures due January 1, 2006 issued pursuant to the Subordinated
Discount Debenture Indenture.
"SUBSIDIARY" means any corporation of which more than fifty
percent (50.0%) of the outstanding securities of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the corporate directors (or Persons performing
similar functions), is at the time, directly or indirectly through one or
more intermediaries, owned by any Borrower and/or one or more Subsidiaries
of any Borrower.
"SUCCESSION AGREEMENT" means the Succession Agreement dated as of
February 14, 1995 among the Lenders, the Borrowers and SPBC, pursuant to
which BankAmerica has been appointed as the successor Agent to SPBC under
the Original Agreement.
"TAX OPINION" means an opinion from counsel to GDT satisfactory
to the Agent, in form and substance satisfactory to the Agent, to the
effect that, after giving effect to any assignment or participation made
pursuant to SECTION 14.3, all Georgia Intangibles Tax required to be paid
to perfect, protect and continue the Liens intended to be granted under the
Loan Documents on GDT's property located in the State of Georgia have been
paid.
"TENDER OFFER" means an offer by Holdings to the holders of the
Debentures to purchase all or a portion of the Debentures for cash or for
cash and newly issued Securities.
"TENDER OFFER DOCUMENTS" means all documents transmitted to the
holders of the Debentures or the SEC in connection with a Tender Offer.
"TERM FUNDING" means each New Term Loan Funding of the Term
Loans.
"TERM FUNDING DATE" means the Initial Term Funding Date, the Real
Estate Term Funding Date or the Terre Haute Term Funding Date.
"TERM LOAN" has the meaning specified in SECTION 2.1.
"TERM LOAN COMMITMENT" means, with respect to each Lender, at any
time, the sum of the following:
(a) with respect to the Original Term Loans and the Term Loans to
be made on the Initial Term Funding Date, each Lender's Pro Rata Share
of $16,727,184.74, and
(b) with respect to the Term Loans to be made on the Real Estate
Term Funding Date, the lesser of (i) (A) the difference of the amount
set forth beside such Lender's name under the heading Term Loan
Commitment on the signature pages of this Agreement or, after an
assignment pursuant to SECTION 14.3, shown for such Lender in the
Register MINUS (B) such Lender's Pro Rata Share of the original
principal amount of the Original Term Loans and Term Loans made on the
Initial Term Funding Date and, in the event the Terre Haute Term
Funding
EX-10.26-24
Date shall occur on or before the Real Estate Term Funding Date, such
Lender's Pro Rata Share of the Term Loans made or to be made on the
Terre Haute Term Funding Date, and (ii) such Lender's Pro Rata Share
of the fair market value of all Real Estate with respect to which the
Agent has received and reviewed appraisals on or after the Initial
Term Funding Date and before such Real Estate Term Funding Date and
which the Agent, in its sole discretion, deems to be eligible Real
Estate against which Term Loans may be made, and
(c) with respect to the Term Loans to be made on the Terre Haute
Term Funding Date, the lesser of (i) (A) the difference of the amount
set forth beside such Lender's name under the heading Term Loan
Commitment on the signature pages of this Agreement or, after an
assignment pursuant to SECTION 14.3, shown for such Lender in the
Register MINUS (B) such Lender's Pro Rata Share of the original
principal amount of the Original Term Loans and Term Loans made at the
Initial Term Funding Date and, in the event the Real Estate Term
Funding Date shall occur on or before the Terre Haute Term Funding
Date, such Lender's Pro Rata Share of the Term Loans made or to be
made on the Real Estate Term Funding Date and (ii) such Lender's Pro
Rata Share of the lesser of (x) seventy-five percent (75%) of hard
costs associated with the Terre Haute Equipment and (y) the orderly
liquidation value of the Terre Haute Equipment, in each case with
respect to which the Agent has received and reviewed appraisals on or
after the Initial Term Funding Date and before such Terre Haute Term
Funding Date and which, in the case of all Terre Haute Equipment, the
Agent, in its sole discretion, deems to be eligible Terre Haute
Equipment against which Term Loans may be made. For purposes of this
clause (c), "hard costs" shall mean the total cost of new Terre Haute
Equipment (which the Agent, in its sole discretion, deems to be
eligible Terre Haute Equipment against which Term Loans may be made)
LESS any freight, installation, software, insurance, taxes, duties and
other costs not directly related to the acquisition thereof.
"Term Loan Commitments" shall, collectively, mean the aggregate amount of
the Term Loan Commitments of all the Lenders, the maximum amount of which
shall not exceed at any time the lesser of (x) $50,000,000 and (y) the
aggregate Commitments with respect to all Lenders pursuant to clauses (a),
(b) and (c) above at such time.
"TERM LOAN" and "TERM LOANS" have the meaning specified in
SECTION 2.1(a).
"TERM NOTE" and "TERM NOTES" have the meanings specified in
SECTION 2.1(d).
"TERMINATION DATE" has the meaning specified in SECTION 13.1.
"TERMINATION EVENT" means: (a) a Reportable Event (other than a
Reportable Event not subject to the provision for 30-day notice to PBGC
under the regulations issued under Section 4043 of ERISA); or (b) the
withdrawal of any Borrower or any Related Company from a Benefit Plan
during a plan year in which such Borrower or Related Company was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations which results in the termination of employment of
twenty percent (20%) of Benefit Plan participants who are employees of such
Borrower or Related Company; or (c) providing to affected parties a notice
of intent to terminate a Benefit Plan or the treatment of a Benefit Plan
amendment as a termination under
EX-10.26-25
Section 4041 of ERISA; or (d) the institution of proceedings by the PBGC to
terminate or have a trustee appointed to administer a Plan; or (e) any
other event or condition which might constitute grounds under Section 4042
of ERISA for the termination or the appointment of a trustee to administer,
any Benefit Plan; or (f) the partial or complete withdrawal of any Borrower
or any Related Company from a Multiemployer Plan.
"TERRE HAUTE EQUIPMENT" means Equipment located on the Real
Estate in Terre Haute, Indiana.
"TERRE HAUTE TERM FUNDING DATE" means the Term Funding Date which
shall occur after the Initial Term Funding Date and on which the Lenders
shall, subject to the terms and conditions of this Agreement, make all or a
portion of the New Term Funding available to GDT based on Terre Haute
Equipment appraisals received and reviewed by, and in form and substance
satisfactory to, the Agent and each Lender on or after the Initial Term
Funding Date and before such Term Funding Date.
"TITLE REPORTS" means, collectively, those certain title reports
regarding the Borrowers' Real Estate issued by Chicago Title Insurance
Company as of the applicable Term Funding Date known and referred to on
Exhibit B to each of the respective Mortgages.
"TRADEMARK AGREEMENT" means the Amended and Restated Trademark
Security Agreement dated of even date herewith, amending and restating the
Trademark Security Agreement dated as of March 21, 1990, executed and
delivered by GDT to the Agent pursuant to SECTION 7.2 to evidence and
perfect the Agent's security interest in GDT's trademarks and related
licenses and rights as provided therein.
"UCC" means the Uniform Commercial Code (or any successor
statute) of the State of New York or of any other state the laws of which
are required by Section 9-103 thereof to be applied in connection with the
issue of perfection of security interests.
"VOTING STOCK" means securities of any class or classes of a
corporation, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors (or
Persons performing similar functions).
1.2 ACCOUNTING TERMS. Any accounting term used in this
Agreement shall have, unless otherwise specifically provided herein, the
meaning customarily given in accordance with GAAP, and all financial
computations hereunder shall be computed, unless otherwise specifically
provided herein, in accordance with GAAP as consistently applied and using
the same method for inventory valuation as used in the preparation of the
Financial Statements; PROVIDED, HOWEVER, that no change in GAAP that would
affect the method of calculation of any of the financial covenants,
restrictions or standards or definitions of terms used therein shall be
given effect in such calculations until such financial covenants,
restrictions or standards or definitions are amended in a manner reasonably
acceptable to the Borrowers and Majority Lenders, so as to reflect such
change in GAAP.
1.3 OTHER TERMS. All other undefined terms contained in this
Agreement shall, unless the context indicates otherwise, have the meanings
provided for by the UCC to the extent the same are used or defined therein.
Any references herein to any other agreement or instrument shall include
such other agreement or instrument as the same has been or may be amended,
EX-10.26-26
restated, modified or supplemented from time to time. Any references
herein to exhibits, schedules, sections or articles are references to
exhibits, sections or articles of this Agreement, unless otherwise speci-
fied. Wherever appropriate in the context, terms used herein in the
singular also include the plural, and vice versa, and each masculine,
feminine, or neuter pronoun shall also include the other genders.
2. LOANS.
2.1 TERM LOANS.
(a) AMOUNT OF TERM LOANS. Subject to the terms and conditions
of this Agreement and in reliance upon the representations and warranties
of the Borrowers herein set forth, each Lender severally agrees to (i)
extend the maturities of Original Term Loans in an amount equal to each
Lender's Pro Rata Share of 16,727,184.74, which is equal to the aggregate
principal amount of Original Term Loans on the Initial Term Funding Date,
(ii) make a term loan to GDT in an amount of $11,272,815.26 on the Initial
Term Funding Date and (iii) make a term loan to GDT on each other Term
Funding Date in an amount equal to such Lender's Term Loan Commitment on
such date (such term loans to be made on each Term Funding Date, together
with any Original Term Loans under the Original Agreement, being
hereinafter referred to collectively as the "Term Loans" and each of such
term loans being hereinafter referred to individually as a "Term Loan").
The Term Loans constituting the New Term Loan Funding shall be available
for funding only on a Term Funding Date, and the Term Loans, when repaid or
prepaid, whether by voluntary or mandatory prepayment or otherwise, may not
be reborrowed. Each Borrowing of Term Loans shall, at the option of GDT,
consist of either Reference Rate Loans or Eurodollar Rate Loans, but not
both, as specified by GDT in the Notice of Borrowing requesting the same.
Notwithstanding anything in this Agreement to the contrary, in no event
shall there be more than three (3) Term Funding Dates, nor shall the Real
Estate Term Funding Date and Terre Haute Term Funding Date, if any, occur
later than May 31, 1995 and February 29, 1996, respectively.
(b) NOTICE OF BORROWING; NOTICE OF CONVERSION/CONTINUATION. (i)
When GDT desires to extend the maturities of Original Term Loans or borrow
any part of the New Term Loan Funding Amount under SECTION 2.1(a) or to
convert or continue any Term Loan bearing interest at a Eurodollar Rate
pursuant to this SECTION 2.1(b), GDT shall deliver to the Agent a Notice of
Borrowing or Notice of Conversion/Continuation, as the case may be, signed
by an authorized officer of GDT, not later than (a) 11:00 a.m. (New York
time) on the requested Funding Date of such proposed Borrowing, in the case
of a Borrowing of Reference Rate Loans or (b) 11:00 a.m. (New York time) on
the third Business Day before the date of such proposed Borrowing,
continuation or conversion, in the case of a Borrowing or continuation of
Eurodollar Rate Loans (or any Portion or Portions thereof) or a conversion
of Reference Rate Loans into Eurodollar Rate Loans. With respect to the
Original Term Loans and the Term Loans to be made on the Initial Term
Funding Date, GDT shall have the right to submit a single Notice of
Borrowing with respect to all such Term Loans. Notwithstanding any other
provision hereof to the contrary, no more than five (5) Portion(s) of
Eurodollar Rate Loans or Borrowing(s) of Revolving Loans consisting of
Eurodollar Rate Loans or any combination thereof may be outstanding at any
time.
(ii) GDT shall notify the Agent in writing of the names of the
officers authorized to request Term Loans on behalf of GDT, and shall
provide the Agent with a specimen signature of each such officer. The
Agent shall be
EX-10.26-27
entitled to rely conclusively on such officer's authority to request Term
Loans on behalf of GDT, the proceeds of which are requested to be trans-
ferred to an account of GDT or issued for the account of GDT, until the
Agent receives written notice to the contrary. The Agent shall have no
duty to verify the authenticity of the signature appearing on any Notice of
Borrowing.
(iii) Any Notice of Borrowing and Notice of
Conversion/Continuation made pursuant to this SECTION 2.1(b) shall be
irrevocable.
(iv) Unless otherwise specified in a Notice of Borrowing, each
Term Loan to be made as part of a Borrowing shall be made as a Reference
Rate Loan. GDT may elect from time to time to convert all or any Portion
of the Term Loans constituting Reference Rate Loans and then outstanding
from Reference Rate Loans to Eurodollar Rate Loans by giving the Agent a
Notice of Conversion/Continuation as specified in SECTION 2.1(b)(i). If a
timely Notice of Conversion/Continuation as specified in SECTION 2.1(b)(i)
is not received from GDT prior to the expiration of any Interest Period for
any outstanding Eurodollar Rate Loan (or Portion or Portions thereof), GDT
shall be deemed to have elected to convert such Eurodollar Rate Loan (or
Portion or Portions thereof) into a Reference Rate Loan on the last day of
the expiring Interest Period; PROVIDED that if any Event or Event of
Default shall have occurred and be continuing, GDT shall be deemed to have
converted, on the last day of the applicable Interest Period, the
Eurodollar Rate Loan (or Portion or Portions thereof) with respect to which
the Interest Period is ending into a Reference Rate Loan in a principal
amount equal to the principal amount of such Eurodollar Rate Loan (or
Portion or Portions thereof).
(v) Subject to the terms and conditions hereof and in
accordance with the procedures for conversions and continuations and the
other provisions set forth in this SECTION 2.1(b) and, in the case of any
conversion into, or continuation of, a Eurodollar Rate Loan, provided that
no Default or Event of Default has occurred and is continuing, each Lender
agrees (i) to convert outstanding Term Loans that are Reference Rate Loans
into Eurodollar Rate Loans and (ii) to continue outstanding Term Loans that
are Eurodollar Rate Loans as Eurodollar Rate Loans, in each case in an
aggregate principal amount not to exceed the principal amount of the
Reference Rate Loans or Eurodollar Rate Loans, as the case may be, then
outstanding. Each Lender will make such conversion without an exchange of
funds; PROVIDED that GDT shall pay to the Agent for the account of each
Lender on the date of each such conversion accrued and unpaid interest on
the Eurodollar Rate Loans of such Lender converted on such date.
(c) MAKING OF TERM LOANS. Promptly after receipt of a Notice of
Borrowing or Notice of Conversion/Continuation under SECTION 2.1(b), the
Agent shall notify each Lender by telex, telecopy, telegram, telephone or
other similar means of transmission, of the proposed Borrowing or
conversion or continuation, as the case may be. With respect to the New
Term Loan Funding, each Lender shall make the amount of such Lender's Term
Loan available to the Agent in same day funds, to such account of the Agent
as the Agent may designate, not later than 12:00 noon (New York time) on
each Term Funding Date. After the Agent's receipt of the proceeds of such
Term Loan constituting the New Term Loan Funding, upon satisfaction of the
applicable conditions precedent set forth in ARTICLE 11, the Agent shall
make the proceeds of such Term Loans available to GDT by transferring same
day funds equal to the proceeds of all such Term Loans received by the
Agent to an
EX-10.26-28
account of GDT designated in writing by GDT or as GDT shall otherwise
instruct in writing.
(d) TERM NOTES. (i) GDT shall execute and deliver to the Agent
(A) on the Effective Date, for the benefit of each Lender party hereto on
the Effective Date, an amendment, renewal and extension of term note
substantially in the form of EXHIBIT C-1 and (B) for the benefit of each
Lender party hereto on each Term Funding Date, on such Term Funding Date, a
promissory note, substantially in the form of EXHIBIT C-2 (all such amend-
ments to promissory notes and promissory notes described in clauses (A) and
(B) hereof, together with any new notes issued pursuant to SECTION 14.3(d)
upon the assignment of any portion of any Lender's Term Loan, being herein-
after referred to collectively as the "Term Notes" and each of such
promissory notes being hereinafter referred to individually as a "Term
Note"), to evidence such Lender's Term Loan, in an original principal
amount equal to the amount of such Lender's Pro Rata Share of the Original
Term Loans or the portion of the New Term Loan Funding to be made on such
Term Funding Date, as the case may be, and with other appropriate
insertions.
(ii) Each of the Term Notes delivered on the Initial Term
Funding Date to the Agent for the benefit of each Lender party hereto shall
be dated the Effective Date and shall be payable in sixty-one (61) consecu-
tive installments. The first sixty of such installments shall be payable
monthly on the first Business Day of each month, commencing March 1995, and
shall each be in an amount equal to such Lender's Pro Rata Share of
$11,272,815.26. The sixty-first (61st) installment shall be payable on the
fifth Anniversary Date and shall be in an amount equal to the then unpaid
principal balance of such Term Loan and all accrued and unpaid interest
thereon. Each such installment shall be payable to the Agent for the
account of such Lender.
(iii) Each of the Term Notes delivered to the Agent for the
benefit of each Lender party hereto on a Term Funding Date (other than the
Initial Term Funding Date) shall be dated such Term Funding Date and shall
be payable in a number of consecutive installments equal to the number of
regularly scheduled consecutive installments then remaining, without giving
effect to any prepayments made under this Agreement, as set forth in the
Term Notes delivered pursuant to SECTION 2.1(d)(ii) hereof. All such
installments (other than the final such installment) shall be payable
monthly on the first Business Day of each month, commencing on the month
next following such Term Funding Date, and shall each be in an amount equal
to such Lender's Term Loan Commitment on such Term Funding Date multiplied
by the Amortization Factor. The final installment shall be payable on the
fifth Anniversary Date and shall be in an amount equal to the then unpaid
principal balance of such Term Loan and all accrued and unpaid interest
thereon. Each such installment shall be payable to the Agent for the
account of such Lender. In the event the Real Estate Term Funding Date and
the Terre Haute Term Funding Date shall occur on the same date, the Lenders
shall have the right, but not the obligation, to direct GDT to deliver a
single Term Note to each of them in an aggregate amount equal to the Term
Loans to be made by such Lender on such date in lieu of separate Notes
representing the Term Loans to be made on the Real Estate Term Funding Date
and Terre Haute Term Funding Date.
(e) NOTATION AND ENDORSEMENT. The Agent shall record in the
Register the principal amount of the Term Loans owing to each Lender from
time to time. In addition, each Lender is authorized, at such Lender's
option, to note the date and amount of each payment or prepayment of
principal of such Lender's Term Loans in its books and records, such books
and records constituting rebuttably presumptive evidence of the accuracy of
EX-10.26-29
the information contained therein. Prior to the transfer of a Term Note,
the applicable Lender shall endorse on the reverse side thereof the
outstanding principal balance of the Term Loans evidenced thereby. Failure
by such Lender to make such notation or endorsement shall not affect the
obligations of the Borrower under such Term Note or any of the other Loan
Documents.
2.2 REVOLVING LOANS.
(a) AMOUNTS OF REVOLVING LOANS. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of each of the Borrowers herein set forth, each Lender severally
agrees to make revolving loans to each of the Borrowers, from time to time
until, but not including the Revolving Credit Termination Date (such
revolving loans and such other financial accommodations made pursuant to
SECTION 2.3 being hereinafter referred to collectively as the "Revolving
Loans" and each of such revolving loans being hereinafter referred to
individually as a "Revolving Loan"), in an amount not to exceed, in the
aggregate at any time outstanding for all Borrowers, (i) such Lender's Pro
Rata Share of the Aggregate Maximum Revolver Amount at such time MINUS (ii)
such Lender's Pro Rata Share of the Letter of Credit Obligations of all
Borrowers MINUS (iii) such Lender's Pro Rata Share of the Banker's
Acceptance Obligations of all Borrowers. In no event shall any Lender be
required to make any Revolving Loan on any date if such Loan, when added to
any and all Loans outstanding or to be made on such date and any and all
Letters of Credit and Banker's Acceptances outstanding or to be issued on
such date, would exceed such Lender's Commitment. Each Borrowing shall
consist of the same type of Revolving Loans which shall, at the option of
GDT on behalf of the Borrower requesting such Borrowing, be either
Reference Rate Loans or Eurodollar Rate Loans, as specified by GDT in the
Notice of Borrowing requesting the same.
(b) NOTICE OF BORROWING; NOTICE OF CONVERSION/CONTINUATION. (i)
Whenever any Borrower desires to borrow Revolving Loans under SECTION
2.2(a) or to convert or continue any Revolving Loan pursuant to this
SECTION 2.2(b), GDT, on behalf of such Borrower, shall deliver to the Agent
a Notice of Borrowing or Notice of Conversion/Continuation, as the case may
be, signed by an authorized officer of GDT, on behalf of such Borrower, not
later than (a) 11:00 a.m. (New York time) on the requested Funding Date of
such proposed Borrowing, continuation or conversion, in the case of a
Borrowing of Reference Rate Loans, or (b) 11:00 a.m. (New York time) on the
third Business Day before the date of such proposed Borrowing, continuation
or conversion, in the case of a Borrowing or continuation of Eurodollar
Rate Loans or a conversion of Reference Rate Loans into Eurodollar Rate
Loans. Notwithstanding any other provision hereof to the contrary, no more
than the sum of five (5) Borrowing(s) of Revolving Loans consisting of
Eurodollar Rate Loans or Portions of Term Loans or any combination thereof
may be outstanding at any time, and no Borrowing(s) of Revolving Loans
consisting of Eurodollar Rate Loans shall be in an aggregate principal
amount of less than $5,000,000 or any greater amount which is an integral
multiple of $1,000,000. In lieu of delivering the above-described Notice
of Borrowing or Notice of Conversion/Continuation, as the case may be, the
Borrower may give the Agent telephonic notice of any requested Borrowing or
conversion or continuation, as the case may be, by the required time;
PROVIDED, HOWEVER, that such notice shall be confirmed in writing by
delivery to the Agent (A) immediately of a telecopy of a Notice of
Borrowing or Notice of Conversion/Continuation, as the case may be, which
has been signed by an authorized officer of the Borrower, and (B) promptly
(and in no event later than three (3) Business Days after the Funding Date
in respect of the applicable Revolving Loans) of
EX-10.26-30
a Notice of Borrowing or Notice of Conversion/Continuation, as the case may
be, containing the original signature of an authorized officer of the
Borrower. In the event that the terms of any confirmatory Notice of
Borrowing or Notice of Conversion/Continuation, as the case may be,
referred to in the proviso contained in the immediately preceding sentence
shall conflict with the telephonic notice with respect to which it was
delivered, the terms of the telephonic notice, as understood by the Agent,
shall govern. Notwithstanding anything in this SECTION 2.2(b) to the
contrary, any Revolving Loans to be made to any Borrower on the Effective
Date shall initially be made as Reference Rate Loans. Each Borrower hereby
authorizes GDT to execute and deliver Notices of Borrowing and Notices of
Conversion/Continuation on its behalf and agrees to be bound by the same.
(ii) GDT shall notify the Agent in writing of the names of the
officers authorized to request Revolving Loans on behalf of each Borrower,
and shall provide the Agent with a specimen signature of each such officer.
The Agent shall be entitled to rely conclusively on such officer's
authority to request Revolving Loans on behalf of each Borrower, the
proceeds of which are requested to be transferred to an account of such
Borrower (which may be a joint account for the Borrowers administered by
GDT) or issued for the account of such Borrower, until the Agent receives
written notice to the contrary. The Agent shall have no duty to verify the
authenticity of the signature appearing on any Notice of Borrowing and,
with respect to an oral request for Revolving Loans, the Agent shall have
no duty to verify the identity of any individual representing himself as
one of the officers of GDT authorized to make such request on behalf of
such Borrower.
(iii) Neither the Agent nor any of the Lenders shall incur any
liability to any Borrower as a result of acting upon any telephonic notice
referred to in this SECTION 2.2(b) which notice the Agent believes in good
faith to have been given by a duly authorized officer of GDT or other
individual authorized to request Revolving Loans on behalf of such Borrower
or for otherwise acting in good faith under this SECTION 2.2(b), and, upon
the funding of Revolving Loans by the Lenders in accordance with this
Agreement, pursuant to any such telephonic notice, such Borrower shall be
deemed to have made a Borrowing of Revolving Loans hereunder.
(iv) Any Notice of Borrowing and Notice of
Conversion/Continuation (or telephonic notice in lieu thereof) made
pursuant to this SECTION 2.2(b) shall be irrevocable. Promptly after
receipt of a Notice of Conversion/Continuation under SECTION 2.2(b), the
Agent shall notify each Lender by telex, telecopy, telegram, telephone or
other similar means of transmission, of the proposed conversion or
continuation, as the case may be.
(v) Unless otherwise specified in a Notice of Borrowing, each
Loan to be made as part of a Borrowing shall be made as a Reference Rate
Loan. If a timely Notice of Conversion/Continuation as specified in
SECTION 2.2(b)(i) is not received from a Borrower prior to the expiration
of any Interest Period for any outstanding Eurodollar Rate Loan, such
Borrower shall be deemed to have elected to convert such Eurodollar Rate
Loan into a Reference Rate Loan on the last day of the expiring Interest
Period; PROVIDED that if any Default or Event of Default shall have
occurred and be continuing, such Borrower shall be deemed to have
converted, on the last day of the applicable Interest Period, the
Eurodollar Rate Loan with respect to which the Interest Period is ending
into a Reference Rate Loan in a principal amount equal to the principal
amount of such Eurodollar Rate Loan.
EX-10.26-31
(vi) Subject to the terms and conditions hereof and in
accordance with the procedures for conversions and continuations and the
other provisions set forth in this SECTION 2.2(b) and, in the case of any
conversion into, or continuation of, a Eurodollar Rate Loan, provided that
no Event or Event of Default has occurred and is continuing, each Lender
agrees (i) to convert outstanding Revolving Loans that are Reference Rate
Loans into Eurodollar Rate Loans and (ii) to continue outstanding Revolving
Loans that are Eurodollar Rate Loans as Eurodollar Rate Loans, in each case
in an aggregate principal amount not to exceed the principal amount of the
Reference Rate Loans or Eurodollar Rate Loans, as the case may be, then
outstanding. Each Lender will make such conversion without an exchange of
funds; PROVIDED that the Borrowers shall jointly and severally pay to the
Agent for the account of each Lender on the date of each such conversion
accrued and unpaid interest on the Eurodollar Rate Loans of such Lender
converted on such date.
(c) AGENT'S ELECTION. Promptly after receipt of a Notice of
Borrowing pursuant to SECTION 2.2(b) (or telecopy or telex notice in lieu
thereof) the Agent shall elect, in its discretion, (i) to have the terms of
SECTION 2.2(d) apply to such requested Borrowing, or (ii) to request
BankAmerica to make a BA Revolving Loan pursuant to the terms of SECTION
2.2(e) in the amount of the requested Borrowing; PROVIDED, HOWEVER, that if
BankAmerica declines in its sole discretion to make a BA Revolving Loan
pursuant to SUBSECTION 2.2(e), the Agent shall elect to have the terms of
SUBSECTION 2.2(d) apply to such requested Borrowing.
(d) MAKING OF REVOLVING LOANS. (i) In the event the Agent
shall elect to have the terms of SECTION 2.2(d) apply to a requested
Borrowing as described in SECTION 2.2(c), then promptly after receipt of a
Notice of Borrowing pursuant to SECTION 2.2(b) (or telecopy or telex notice
in lieu thereof), the Agent shall notify the Lenders by telex, telecopy,
telegram, telephone or other similar form of transmission, of the requested
Borrowing. Each Lender shall make the amount of such Lender's Pro Rata
Share of the requested Borrowing available to the Agent in same day funds,
to such account of the Agent as the Agent may designate, not later than
12:00 noon (New York time) on the Funding Date applicable thereto. After
the Agent's receipt of the proceeds of such Revolving Loans, upon satisfac-
tion of the applicable conditions precedent set forth in ARTICLE 11, the
Agent shall make the proceeds of such Revolving Loans available to the
applicable Borrower on such Funding Date by transferring same day funds
equal to the proceeds of all such Revolving Loans received by the Agent to
an account of such Borrower (which may be a joint account for the Borrowers
administered by GDT), designated in writing by GDT on behalf of such
Borrower; PROVIDED, HOWEVER, that the requested Borrowing of such Revolving
Loans shall in no event exceed the amount of the Aggregate Availability or
the Availability of such Borrower on such date.
(ii) On any Funding Date in respect of a Borrowing of Revolving
Loans, the Agent shall be entitled to assume that each Lender has made the
amount of such Lender's Revolving Loans available to the Agent on such
Funding Date, unless such Lender shall have notified the Agent to the
contrary. The Agent, in its sole discretion, based upon such assumption,
may make available to the Borrowers a corresponding amount on such Funding
Date. If such corresponding amount had not in fact been made available to
the Agent by any Lender, such Lender and the Borrower requesting a
Revolving Loan severally agree to repay to the Agent forthwith, on demand,
such corresponding amount, together with interest thereon for each day
during the period commencing on the date such amount is made available to
such Borrower
EX-10.26-32
and ending on the date such amount is repaid to the Agent, at (1) in the
case of a Borrower, the Interest Rate applicable to Revolving Loans made on
such Funding Date, and (2) in the case of a Lender, the Federal Funds Rate.
If such Lender repays to the Agent such corresponding amount, such amount
so repaid shall constitute a Revolving Loan, and if both such Lender and
the Borrowers shall have repaid such corresponding amount, the Agent shall
promptly return to such Borrower such corresponding amount in same day
funds. Nothing in this SECTION 2.2(d)(ii) shall be deemed to relieve any
Lender of its obligation, if any, hereunder to make a Revolving Loan on any
Funding Date.
(e) MAKING OF BA REVOLVING LOANS. (i) In the event the Agent
shall elect, with the consent of BankAmerica, to have the terms of this
SECTION 2.2(e) apply to a requested Borrowing as described in SECTION
2.2(c), BankAmerica shall make a Revolving Loan in the amount of such
Borrowing (any such Revolving Loan made solely by BankAmerica pursuant to
this SECTION 2.2(e) being referred to as a "BA Revolving Loan" and such
Revolving Loans being referred to collectively as "BA Revolving Loans")
available to a Borrower on the Funding Date applicable thereto by
transferring same day funds to an account of the Borrower requesting a
Revolving Loan (which may be a joint account for the Borrowers administered
by GDT), designated in writing by GDT on behalf of such Borrower. Each BA
Revolving Loan is a Revolving Loan hereunder and shall be subject to all
the terms and conditions applicable to other Revolving Loans except that
all payments thereon shall be payable to BankAmerica solely for its own
account (and for the account of any participation interests with respect to
such Revolving Loan created pursuant to clause (iii) of this
SECTION 2.2(e)). BankAmerica shall have no duty to make any BA Revolving
Loan, and the Agent shall not request BankAmerica to make a BA Revolving
Loan if the requested Borrowing would exceed the amount of the Aggregate
Availability or the Availability of such Borrower on the Funding Date
applicable thereto, or if the Agent shall have received written notice from
any Lender that one or more of the applicable conditions precedent set
forth in ARTICLE 11 will not be satisfied on the requested Funding Date for
the applicable Borrowing. BankAmerica shall not otherwise be required to
determine whether the applicable conditions precedent set forth in
ARTICLE 11 have been satisfied or the requested Borrowing would exceed the
amount of the Aggregate Availability or the Availability of such Borrower
on the Funding Date applicable thereto prior to making, in its sole
discretion, any BA Revolving Loan.
(ii) BankAmerica shall request settlement ("Settlement") with
the other Lenders with respect to each outstanding BA Revolving Loan at
least once a week by notifying such other Lenders by telex, telecopy,
telegram, telephone or other similar form of transmission, of such
requested Settlement, no later than 11:00 a.m. (New York time) on the date
of such requested Settlement (the "Settlement Date"). Each such Lender
shall make the amount of such Lender's Pro Rata Share of the outstanding
principal amount of the BA Revolving Loans with respect to which Settlement
is requested available to BankAmerica in same day funds, to such account of
BankAmerica as BankAmerica may designate, not later than 12:00 noon (New
York time) on the Settlement Date applicable thereto, regardless of
whether the applicable conditions precedent set forth in ARTICLE 11 have
then been satisfied. Such amounts made available to BankAmerica shall be
applied against the amount of the applicable BA Revolving Loan and,
together with the portion of such BA Revolving Loan representing
BankAmerica's Pro Rata Share thereof, shall constitute Revolving Loans of
such Lenders. If any such amount is not made available to BankAmerica by
any Lender on the Settlement Date applicable thereto, BankAmerica shall be
entitled to recover such amount
EX-10.26-33
on demand from such Lender together with interest thereon at the Federal
Funds Rate for the first three (3) days from and after the Settlement Date
and thereafter at the Interest Rate applicable to the Revolving Loans.
(iii) Notwithstanding the foregoing, not more than one (1)
Business Day after demand is made by BankAmerica (whether before or after
the occurrence of a Default or an Event of Default and regardless of
whether BankAmerica has requested a Settlement with respect to any BA
Revolving Loan), each other Lender shall irrevocably and unconditionally
purchase and receive from BankAmerica, without recourse or warranty, an
undivided interest and participation in such BA Revolving Loan to the
extent of such other Lender's Pro Rata Share thereof by paying to
BankAmerica, in same day funds, an amount equal to such Lender's Pro Rata
Share of such BA Revolving Loan. If such amount is not in fact made
available to BankAmerica by any Lender, BankAmerica shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the Federal Funds Rate for the first three (3) days from and
after such demand and thereafter at the Interest Rate applicable to the
Revolving Loans.
(iv) From and after the date, if any, on which any Lender
purchases an undivided interest and participation in any BA Revolving Loan
pursuant to subsection (iii) above, BankAmerica shall promptly distribute
to such Lender at such address as such Lender may request in writing, such
Lender's Pro Rata Share of all payments of principal and interest and all
proceeds of Collateral received by BankAmerica in respect of such BA
Revolving Loan.
(f) NOTATION. The Agent shall record in the Register the
principal amount of the Revolving Loans owing to each Lender, including BA
Revolving Loans owing to BankAmerica, from time to time. In addition, each
Lender is authorized, at such Lender's option, to note the date and amount
of each payment or prepayment of principal of such Lender's Revolving Loans
in its books and records, including computer records, such books and
records constituting rebuttably presumptive evidence of the accuracy of the
information contained therein.
2.3 OVER ADVANCES. The Agent, in its sole and absolute
discretion, may elect to make Revolving Loans and issue or permit to be
issued Letters of Credit and Banker's Acceptances in excess of any
Borrower's Availability or the Aggregate Availability on one or more
occasions (such financial accommodations are hereinafter referred to as
"Over Advances"), but if it does so, the Agent shall not be deemed thereby
to have changed the limits of the Maximum Revolver Amount for such Borrower
or the Aggregate Maximum Revolver Amount; PROVIDED, HOWEVER, that such Over
Advances shall not exceed at any time an amount equal to five percent (5%)
of the Aggregate Maximum Revolver Amount in effect from time to time;
PROVIDED FURTHER, that the Agent shall not be deemed to have breached the
provisions of this SECTION 2.3 if an Over Advance results from Collateral
deterioration or ineligibility or the return (uncollected) of checks or
other items applied to the reduction of Loans. Immediately upon demand by
the Agent for repayment of any Over Advance, the Borrowers shall make such
repayment, without penalty or fee. If, however, the repayment is not made
on or before the Business Day following the day on which such demand is
made, then the Borrowers agree to pay the Lenders a fee for Over Advances
in an amount acceptable to the Lenders and the Borrowers. If the aggregate
of the outstanding principal balance of the Revolving Loans, Letter of
Credit Obligations and Banker's Acceptance Obligations for all Borrowers
exceeds the Aggregate Maximum Revolver Amount, or if the aggregate of the
outstanding principal balance of
EX-10.26-34
the Revolving Loans to any Borrower and the Letter of Credit Obligations
and Banker's Acceptance Obligations of such Borrower exceeds such
Borrower's Maximum Revolver Amount, the Agent may refuse to make or
otherwise restrict the making of Revolving Loans, Letters of Credit or
Banker's Acceptances on such terms as the Agent determines until such
excess has been eliminated. In the event the Agent elects to make an Over
Advance, or the aggregate outstanding principal balance of the Revolving
Loans, Letter of Credit Obligations and Banker's Acceptance Obligations for
all Borrowers shall exceed at any time for any reason the Aggregate Maximum
Revolver Amount, or the aggregate outstanding principal balance of the
Revolving Loans and Letter of Credit Obligations and Banker's Acceptance
Obligations of such Borrower shall exceed such Borrower's Maximum Revolver
Facility, such Over Advance or excess amount shall be immediately due and
payable upon demand therefor by the Agent. The Agent agrees to notify (in
writing or orally and promptly confirmed in writing) the applicable
Borrowers of any Over Advance, but the failure to give such notice shall
not affect the Agent's right to make Over Advances. All Over Advances
shall constitute Revolving Loans hereunder and shall be subject to all the
terms and conditions subject to other Revolving Loans.
2.4 LENDERS' FAILURE TO PERFORM. All Loans (other than BA
Revolving Loans) shall be made by each Lender simultaneously and in
accordance with its respective Pro Rata Share. It is understood that (a)
no Lender shall be responsible for any failure by any other Lender to
perform its obligation to make any Loans hereunder, nor shall any
Commitment of any Lender be increased or decreased as a result of any
failure by any other Lender to perform its obligation to make any Loans
hereunder, and (b) no failure by any Lender to perform its obligation to
make any Loans hereunder shall excuse any other Lender from its obligation
to make any Loans hereunder.
3A. LETTER OF CREDIT SUBFACILITY.
3A.1 AGREEMENT TO ISSUE. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
each of the Borrowers herein set forth, the Agent hereby agrees to cause
BOA to issue for the account of any Borrower, or if BOA is not acceptable
to the beneficiary thereof, the Agent agrees to cause to be issued for the
account of any Borrower by an issuer reasonably satisfactory to such
beneficiary, one or more Letters of Credit in accordance with this ARTICLE
3A, from time to time during the period commencing on the Effective Date
and ending on the date of termination of this Agreement pursuant to SECTION
13.1.
3A.2 AMOUNTS; TENOR. BOA shall not have any obligation to
issue, and the Agent shall not have any obligation to cause to be issued,
any Letter of Credit at any time:
(a) if, after giving effect to the issuance of the
requested Letter of Credit, (i) the aggregate Letter of Credit
Obligations of all Borrowers would exceed the L/C Subfacility
then in effect, or (ii) the sum of the aggregate Letter of Credit
Obligations of all Borrowers, PLUS the aggregate principal amount
of the Revolving Loans outstanding, PLUS the aggregate Banker's
Acceptance Obligations, would exceed the Aggregate Maximum
Revolver Amount, or the sum of the Letter of Credit Obligations
of a Borrower, PLUS the aggregate principal amount of the
Revolving Loans outstanding to such Borrower, PLUS the aggregate
Banker's Acceptance Obligations
EX-10.26-35
issued for the benefit of such Borrower, would exceed such Borrower's
Maximum Revolver Amount; or
(b)(i)(A) with respect to any Merchandise Letter of Credit,
if such Letter of Credit has an expiration date of more than 180
days after the date of issuance thereof and (B) with respect to
any Standby Letter of Credit, if such Letter of Credit has an
expiration date of more than twelve months after the date of
issuance thereof and (ii) with respect to any Letter of Credit,
if such Letter of Credit has an expiration date, after giving
effect to any extensions or renewals thereof, later than ten (10)
Business Days prior to the Termination Date.
3A.3 CONDITIONS. In addition to being subject to the
satisfaction of the conditions precedent contained in ARTICLE 11, the
obligation of the Agent to cause to be issued any Letter of Credit is
subject to the following conditions precedent having been satisfied in a
manner satisfactory to the Agent:
(a) GDT, on behalf of the Borrower requesting the Letter of
Credit, shall have delivered to the proposed issuer of such
Letter of Credit at such times and in such manner as the proposed
issuer of such Letter of Credit may prescribe an application in
form and substance satisfactory to the proposed issuer of such
Letter of Credit for the issuance of the Letter of Credit, a
Letter of Credit Reimbursement Agreement and such other documents
as may be required pursuant to the terms thereof, and the form
and terms of the proposed Letter of Credit shall be satisfactory
to the Agent and the proposed issuer of such Letter of Credit;
(b) as of the date of issuance, no order of any court,
arbitrator or Public Authority having jurisdiction or authority
over the proposed issuer shall purport by its terms to enjoin or
restrain money center banks generally from issuing letters of
credit of the type and in the amount of the proposed Letter of
Credit, and no law, rule or regulation applicable to money center
banks generally and no request or directive (whether or not
having the force of law) from any Public Authority with
jurisdiction over money center banks generally shall prohibit, or
request that the proposed issuer of such Letter of Credit refrain
from, the issuance of letters of credit generally or the issuance
of such Letter of Credit; and
(c) GDT, on behalf of the Borrower requesting the Letter
of Credit, shall have appointed the Agent as its attorney, with
full power and authority: (i) to sign and/or endorse such
Borrower's name upon any warehouse or other receipts or Letter of
Credit applications; (ii) to sign such Borrower's name on bills
of lading; (iii) to clear Inventory through U.S. Customs in such
Borrower's name or the name of the Agent, and to sign and deliver
to U.S. Customs officials powers of attorney in such Borrower's
name for such purpose; (iv) to complete in Borrower's name or
Agent's name any order, sale or transaction, obtain the necessary
documents in connection therewith and collect the proceeds
thereof; and (v) to do such other acts and things as are
necessary to carry out the terms of this Agreement in order to
enable Agent to obtain payment of all Obligations. In addition,
such Borrower will, and Agent may, at its option, instruct all
suppliers, carriers, forwarders,
EX-10.26-36
warehouses or others receiving or holding cash, checks, Inventory,
documents or instruments in which Agent, on behalf of the Lenders,
holds a security interest to deliver them to Agent and/or subject to
Agent's order, and if they shall come into the possession of Borrower,
Borrower will hold them in trust as trustee for Agent, and Borrower
will immediately deliver them to Agent in their original form,
together with any necessary endorsements thereto.
3A.4 ISSUANCE OF LETTERS OF CREDIT.
(a) REQUEST FOR ISSUANCE. GDT, on behalf of the Borrower
requesting the Letter of Credit, shall give the Agent written notice no
later than six (6) Business Days prior to the proposed date of issuance of
the Letter of Credit, containing the original signature of an authorized
officer of GDT, on behalf of such Borrower, of such Borrower's request for
the issuance of a Letter of Credit. Such notice shall be irrevocable and
shall specify the Borrower for whose account such Letter of Credit is to be
issued, the original face amount of the Letter of Credit requested, the
effective date (which date shall be a Business Day) of issuance of such
requested Letter of Credit, whether such Letter of Credit may be drawn in a
single or in partial draws, the date on which such requested Letter of
Credit is to expire (which date shall be a Business Day), the purpose for
which such Letter of Credit is to be issued, whether such Letter of Credit
is to be issued to replace a letter of credit (including letters of credit
issued other than pursuant to this Agreement), and the beneficiary of the
requested Letter of Credit. GDT, on behalf of the Borrower requesting the
Letter of Credit, shall attach to such notice the form of the Letter of
Credit that such Borrower requests that the Agent cause to be issued.
(b) RESPONSIBILITIES OF THE AGENT; ISSUANCE. The Agent shall
determine, as of the Business Day immediately preceding the requested
effective date of issuance of the Letter of Credit set forth in the notice
from GDT, on behalf of the Borrower requesting the Letter of Credit
pursuant to SECTION 3A.4(a), the amount of the unused L/C Subfacility, such
Borrower's Availability and Aggregate Availability as of such date. If (i)
the form of the Letter of Credit delivered by GDT to the Agent is
acceptable to the Agent in its reasonable discretion, (ii) the undrawn face
amount of the requested Letter of Credit is less than or equal to each of
such unused L/C Subfacility, Aggregate Availability and such Borrower's
Availability, and (iii) the Agent has received a certificate from GDT, on
behalf of the Borrower requesting the Letter of Credit, stating that the
applicable conditions set forth in ARTICLE 11 have been satisfied, then the
Agent shall issue or cause to be issued such Letter of Credit for the
account of such Borrower.
(c) NO EXTENSION OR AMENDMENT. The Agent shall not cause any
Letter of Credit to be extended or amended unless the requirements of this
ARTICLE 3A are met as though a new Letter of Credit were being requested
and issued. With respect to any Letter of Credit which contains any
"evergreen" or automatic renewal provision, each Lender shall be deemed to
have consented to any such extension or renewal unless any such Lender
shall have provided to the Agent, not less than fifteen (15) days prior to
the last date on which the applicable issuer can in accordance with the
terms of the applicable Letter of Credit decline to extend or renew such
Letter of Credit, written notice that it declines to consent to any such
extension or renewal, PROVIDED, that if all of the requirements of this
ARTICLE 3A are met, no Lender shall decline to consent to any such
extension or renewal.
EX-10.26-37
3A.5 LETTER OF CREDIT REIMBURSEMENT OBLIGATIONS; DUTIES OF
ISSUER.
(a) REIMBURSEMENT. Notwithstanding any provisions to the
contrary in any Letter of Credit Reimbursement Agreement, the Borrower
requesting a Letter of Credit shall reimburse BOA or any other issuer of
any Letter of Credit for any drawings (whether partial or full) under such
Letter of Credit in accordance with its terms immediately after the payment
by BOA or the other issuer of such Letter of Credit. Any drawings not paid
when due under the terms of such Letter of Credit or the Letter of Credit
Reimbursement Agreement pertaining thereto shall bear interest, payable on
demand, at the Reference Rate plus two percent (2%) per annum until BOA or
such other issuer of such Letter of Credit is reimbursed in full.
(b) DUTIES OF ISSUER. Any action taken or omitted to be taken
by BOA or any other issuer of any Letter of Credit under or in connection
with any Letter of Credit, if taken or omitted in the absence of gross
negligence or willful misconduct, shall not put BOA or the other issuer of
such Letter of Credit under any resulting liability to any Lender, or,
assuming that BOA or the other issuer of such Letter of Credit has complied
with the procedures specified in SECTION 3A.4, relieve any Lender of its
obligations hereunder to BOA or the other issuer of such Letter of Credit.
In determining whether to pay under any Letter of Credit, BOA or the other
issuer of such Letter of Credit shall have no obligation relative to any
Lender other than to confirm that any documents required to have been
delivered under such Letter of Credit appear to comply on their face with
the requirements of such Letter of Credit.
3A.6 PARTICIPATIONS.
(a) PURCHASE OF PARTICIPATIONS. Immediately upon issuance by
BOA or any other issuer of any Letter of Credit in accordance with SECTION
3A.4, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received without recourse or warranty, an undivided interest
and participation in (i) in the case of a Letter of Credit issued by BOA,
such Letter of Credit, equal to such Lender's Pro Rata Share of the face
amount thereof, or (ii) in the case of a Letter of Credit issued by an
issuer other than BOA, the Agent's guaranty or reimbursement obligations to
such issuer in connection with the issuance of such Letter of Credit, equal
to such Lender's Pro Rata Share of the face amount of such Letter of Credit
(including, without limitation, in either case, all obligations of the
Borrower requesting the Letter of Credit with respect thereto, other than
amounts owing to BOA or any other issuer of such Letter of Credit under
SECTION 3A.8(b), and any security therefor or guaranty pertaining thereto).
(b) SHARING OF LETTER OF CREDIT PAYMENTS. In the event that BOA
or any other issuer of such Letter of Credit makes a payment under any
Letter of Credit and BOA or such other issuer of such Letter of Credit
shall not have been repaid such amount pursuant to SECTION 3A.7, the Agent
shall notify each Lender, and each Lender shall unconditionally pay to the
Agent for the account of BOA or such other issuer, as and when provided
hereinbelow, an amount equal to such Lender's Pro Rata Share of the amount
of such payment in Dollars and in same day funds. If the Agent so notifies
the Lenders by not later than 11:00 a.m. (New York time) on any Business
Day, each Lender shall make available to the Agent the amount of such
payment, as provided in the immediately preceding sentence, on such
Business Day. If the Agent so notifies the Lenders after 11:00 a.m. (New
York time) on any Business Day, each Lender shall make available to the
Agent the amount of such payment, as provided in the second preceding
sentence, together with interest thereon at
EX-10.26-38
the Federal Funds Rate, by not later than 11:00 a.m. (New York time) on the
next Business Day. Such amounts paid by the Lenders to the Agent shall
constitute Revolving Loans which shall be deemed to have been requested by
the Borrower for whose account the Letter of Credit was issued pursuant to
SECTION 2.1.
(c) SHARING OF REIMBURSEMENT OBLIGATION PAYMENTS. Whenever the
Agent receives a payment from a Borrower for whose account a Letter of
Credit was issued on account of a Letter of Credit Reimbursement Obligation
as to which the Agent has previously received for the account of BOA or
such other issuer payment from a Lender pursuant to this SECTION 3A.6, the
Agent shall promptly pay to such Lender, such Lender's Pro Rata Share of
such payment from such Borrower in Dollars. Each such payment shall be
made by the Agent on the Business Day on which the Agent receives
immediately available funds paid to such Person pursuant to the immediately
preceding sentence, if received prior to 11:00 a.m. (New York time) on such
Business Day and otherwise on the next succeeding Business Day.
(d) DOCUMENTATION. Upon the request of any Lender, the Agent
shall furnish to such Lender copies of any Letter of Credit, Letter of
Credit Reimbursement Agreement, application for any Letter of Credit and
guaranty in connection with the issuance of any Letter of Credit by an
issuer other than BOA to which the Agent is party and such other
documentation as may reasonably be requested by such Lender.
(e) OBLIGATIONS IRREVOCABLE. The obligations of each Lender to
make payments to the Agent with respect to any Letter of Credit or with
respect to any guaranty or reimbursement obligation of the Agent with
respect to any Letter of Credit, and the obligations of each Borrower to
make payments to the Agent, for the account of the Lenders, shall be
irrevocable, not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
(assuming, in the case of the obligations of the Lenders to make such
payments, that the Agent has caused such Letter of Credit to be issued in
accordance with SECTION 3A.4), including, without limitation, any of the
following circumstances:
(i) Any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) The existence of any claim, set-off, defense or other
right which any Borrower may have at any time against a
beneficiary named in a Letter of Credit or any transferee of any
Letter of Credit (or any Person for whom any such transferee may
be acting), any Lender, BOA, the issuer of such Letter of Credit
issued by an issuer other than BOA, or any other Person, whether
in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transactions between any Borrower or
any other Person and the beneficiary named in any Letter of
Credit) or any failure of the Agent to notify a Lender of the
issuance, extension or renewal of a Letter of Credit;
(iii) Any draft, certificate or any other document
presented under the Letter of Credit upon which payment has been
made in good faith and according to its terms proving to be
forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
EX-10.26-39
(iv) The surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) The occurrence of any Default or Event of Default.
3A.7 PAYMENT OF LETTER OF CREDIT REIMBURSEMENT OBLIGATIONS.
(a) PAYMENT TO ISSUER. The Borrowers agree, jointly and
severally, to pay to the Agent, in the case of a Letter of Credit issued by
BOA, or such other issuer of the Letter of Credit, in the case of a Letter
of Credit issued by an issuer other than BOA, the amount of all Letter of
Credit Reimbursement Obligations and other amounts payable to BOA or such
other issuer under or in connection with any Letter of Credit immediately
when due, irrespective of any claim, set-off, defense or other right which
any Borrower may have at any time against BOA or such other issuer or any
other Person.
(b) RECOVERY OR AVOIDANCE OF PAYMENTS. In the event any payment
by or on behalf of any of the Borrowers received by the Agent with respect
to any Letter of Credit (or any guaranty or reimbursement obligation
relating thereto) and distributed by the Agent to the Lenders on account of
their respective participations therein is thereafter set aside, avoided or
recovered from the Agent or BOA in connection with any receivership,
liquidation or bankruptcy proceeding, the Lenders shall, upon demand by the
Agent, pay to the Agent, for its account or the account of BOA, their
respective Pro Rata Shares of such amount set aside, avoided or recovered
together with interest at the rate required to be paid by the Agent or BOA
upon the amount required to be repaid by it.
3A.8 COMPENSATION FOR LETTERS OF CREDIT.
(a) LETTER OF CREDIT FEES. The Borrowers jointly and severally
agree to pay to the Agent with respect to each Letter of Credit, for the
account of each Lender, the Letter of Credit Fee in accordance with the
terms of SECTION 4.4.
(b) ISSUER FEES AND CHARGES. The Borrowers jointly and
severally agree to pay to the Agent, for the account of the issuer of such
Letters of Credit (whether BOA or another issuer), solely for such issuer's
account, such fees and other charges as are charged by BOA or such other
issuer for letters of credit issued by it, including, without limitation,
its standard fees for issuing, administering, amending, renewing, paying
and cancelling letters of credit, as and when assessed.
3A.9 INDEMNIFICATION; EXONERATION.
(a) INDEMNIFICATION. In addition to amounts payable as
elsewhere provided in this ARTICLE 3A, the Borrowers jointly and severally
agree to protect, indemnify, pay and save the Lenders and the Agent
harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) which any Lender or the Agent may incur or be subject to
as a consequence, directly or indirectly, of (i) the issuance of any Letter
of Credit other than, in the case of BOA (or, if any other Lender shall be
the issuer of a Letter of Credit, such other Lender), as a result of its
gross negligence or willful misconduct, as determined by a court of
competent jurisdiction, or (ii) the failure of BOA to honor a drawing under
any Letter of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future
EX-10.26-40
de jure or de facto Public Authority (all such acts or omissions being
hereinafter referred to collectively as "Government Acts").
(b) ASSUMPTION OF RISK BY THE BORROWERS. As among the
Borrowers, the Lenders and the Agent, the Borrowers assume all risks of the
acts and omissions of, or misuse of any of the Letters of Credit by, the
respective beneficiaries of such Letters of Credit. In furtherance and not
in limitation of the foregoing, subject to the provisions of the
applications for the issuance of Letters of Credit, the Lenders and the
Agent shall not be responsible for: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any
Person in connection with the application for and issuance of and
presentation of drafts with respect to any of the Letters of Credit, even
if it should prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason; (iii) the failure of the beneficiary of any Letter of
Credit to comply duly with conditions required in order to draw upon such
Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex
or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any Letter of Credit or the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences
arising from causes beyond the control of the Lenders or the Agent,
including, without limitation, any Government Acts. None of the foregoing
shall affect, impair or prevent the vesting of any of the Agent's rights or
powers under this SECTION 3A.9.
(c) EXONERATION. In furtherance and extension, and not in
limitation, of the specific provisions set forth above, any action taken or
omitted by the Agent or BOA under or in connection with any of the Letters
of Credit or any related certificates, if taken or omitted in good faith,
shall not put any Lender or the Agent under any resulting liability to any
Borrower or relieve any Borrower of any of its obligations hereunder to any
such Person.
3A.10 SUPPORTING LETTER OF CREDIT; CASH COLLATERAL. If,
notwithstanding the provisions of SECTION 3A.2(b) or SECTION 3B.2(b), any
Letter of Credit or Banker's Acceptance is outstanding upon the termination
of this Agreement, then upon such termination, or upon the occurrence of an
Event of Default, the Borrowers shall, promptly on demand by the Agent,
deposit with the Agent, for the ratable benefit of the Secured Creditors,
with respect to each Letter of Credit or Banker's Acceptance then outstand-
ing, as the Agent shall specify, either (a) a standby letter of credit (a
"Supporting Letter of Credit") in form and substance satisfactory to the
Agent, issued by an issuer reasonably satisfactory to the Agent in an
amount equal to the face amount of such Banker's Acceptance or the greatest
amount for which such Letter of Credit may be drawn, as the case may be,
under which Supporting Letter of Credit the Agent is entitled to draw
amounts necessary to reimburse the Agent and the Lenders for payments made
by the Agent and the Lenders under such Letter of Credit or such Banker's
Acceptance, as the case may be, or under any reimbursement or guaranty
agreement with respect thereto, or (b) cash in amounts necessary to
reimburse the Agent and the Lenders for payments made by the Agent and the
Lenders under such Letter of Credit or
EX-10.26-41
such Banker's Acceptance, as the case may be, or under any reimbursement or
guaranty agreement with respect thereto. Such Supporting Letter of Credit
or deposit of cash shall be held by the Agent for the benefit of the
Secured Creditors, as security for, and to provide for the payment of, any
outstanding Letter of Credit Reimbursement Obligations and Banker's
Acceptance Reimbursement Obligations. In addition, the Agent may at any
time apply any or all of such cash collateral to the payment of any or all
of the Obligations then due and payable. If the Agent elects, in its
reasonable discretion, to invest any cash collateral, any commissions,
expenses and penalties incurred by the Agent in connection with any invest-
ment and redemption of such cash collateral shall be Obligations hereunder
secured by the Collateral, shall bear interest at the Reference Rate and
shall be charged to one or more accounts established by the Agent on its
books in the Borrowers' names (each, a "Loan Account"), or, at the Agent's
option, shall be paid out of the proceeds of any interest earned and
received by the Agent from the investment of such cash collateral as
provided herein or out of such cash collateral itself. The Agent makes no
representation or warranty as to, and shall not be responsible for, the
rate of return earned on any cash collateral. The Agent and Borrower shall
agree in writing what amounts constitute cash collateral and interest shall
accrue only on such amounts. Any interest accruing on such cash collateral
shall be held as additional cash collateral on the terms set forth in this
SECTION 3A.10.
3B. BANKER'S ACCEPTANCE SUBFACILITY.
3B.1 AGREEMENT TO ISSUE. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
each of the Borrowers herein set forth, the Agent hereby agrees to cause
BOA to issue for the account of any Borrower, or if BOA is not acceptable
to the beneficiary thereof, the Agent agrees to cause to be issued for the
account of any Borrower by an issuer reasonably satisfactory to such
beneficiary, one or more Banker's Acceptances in accordance with this
ARTICLE 3B, from time to time during the period commencing on the Effective
Date and ending on the date of termination of this Agreement pursuant to
SECTION 13.1.
3B.2 AMOUNTS; TENOR. BOA shall not have any obligation to
issue, and the Agent shall not have any obligation to cause to be issued,
any Banker's Acceptance at any time:
(a) if, after giving effect to the issuance of the
requested Banker's Acceptance, (i) the aggregate Banker's
Acceptance Obligations of all Borrowers would exceed the Banker's
Acceptance Subfacility then in effect, or (ii) the sum of the
aggregate Banker's Acceptance Obligations of all Borrowers, PLUS
the aggregate principal amount of the Revolving Loans
outstanding, PLUS the aggregate Letter of Credit Obligations,
would exceed the Aggregate Maximum Revolver Amount, or the sum of
the Banker's Acceptance Obligations of a Borrower, PLUS the
aggregate principal amount of the Revolving Loans outstanding to
such Borrower, PLUS the Letter of Credit Obligations of a
Borrower, would exceed such Borrower's Maximum Revolver Amount;
or
(b) if the draft to which such Banker's Acceptance relates has
a maturity in excess of 180 days after the date of issuance thereof.
3B.3 CONDITIONS. In addition to being subject to the
satisfaction of the conditions precedent contained in ARTICLE 11, the
obligation of the
EX-10.26-42
Agent to cause to be issued any Banker's Acceptance is subject to the
following conditions precedent having been satisfied in a manner
satisfactory to the Agent:
(a) GDT, on behalf of the Borrower requesting the Banker's
Acceptance, shall have delivered to the proposed accepting
institution at such times and in such manner as the proposed
accepting institution may prescribe an application in form and
substance satisfactory to the proposed accepting institution for
the issuance of the Banker's Acceptance, a Banker's Acceptance
Agreement and such other documents as may be required pursuant to
the terms thereof, and the form and terms of the proposed
Banker's Acceptance shall be satisfactory to the Agent and the
proposed accepting institution;
(b) as of the date of issuance, no order of any court,
arbitrator or Public Authority having jurisdiction or authority
over the proposed accepting institution shall purport by its
terms to enjoin or restrain money center banks generally from
issuing banker's acceptances of the type and in the amount of the
proposed Banker's Acceptance, and no law, rule or regulation
applicable to money center banks generally and no request or
directive (whether or not having the force of law) from any
Public Authority with jurisdiction over money center banks
generally shall prohibit, or request that the proposed accepting
institution refrain from, the issuance of banker's acceptances
generally or the issuance of such Banker's Acceptance; and
(c) GDT, on behalf of the Borrower requesting the Banker's
Acceptance, shall have appointed the Agent as its attorney, with
full power and authority: (i) to sign and/or endorse such
Borrower's name upon any warehouse or other receipts or Banker's
Acceptance applications; (ii) to sign such Borrower's name on
bills of lading; (iii) to clear Inventory through U.S. Customs in
such Borrower's name or the name of the Agent, and to sign and
deliver to U.S. Customs officials powers of attorney in such
Borrower's name for such purpose; (iv) to complete in Borrower's
name or Agent's name any order, sale or transaction, obtain the
necessary documents in connection therewith and collect the
proceeds thereof; and (v) to do such other acts and things as are
necessary to carry out the terms of this Agreement in order to
enable Agent to obtain payment of all Obligations. In addition,
such Borrower will, and Agent may, at its option, instruct all
suppliers, carriers, forwarders, warehouses or others receiving
or holding cash, checks, Inventory, documents or instruments in
which Agent, on behalf of the Lenders, holds a security interest
to deliver them to Agent and/or subject to Agent's order, and if
they shall come into the possession of Borrower, Borrower will
hold them in trust as trustee for Agent, and Borrower will
immediately deliver them to Agent in their original form,
together with any necessary endorsements thereto.
3B.4 ISSUANCE OF BANKER'S ACCEPTANCES.
(a) REQUEST FOR ISSUANCE. GDT, on behalf of the Borrower
requesting the Banker's Acceptance, shall give the Agent written notice no
later than six (6) Business Days prior to the proposed date of issuance of
the Banker's Acceptance, containing the original signature of an authorized
EX-10.26-43
officer of GDT, on behalf of such Borrower, of such Borrower's request for
the issuance of a Banker's Acceptance. Such notice shall be irrevocable
and shall specify the Borrower for whose account such Banker's Acceptance
is to be issued, the face amount of the instrument to which the requested
Banker's Acceptance relates, the effective date (which date shall be a
Business Day) of issuance of such requested Banker's Acceptance, the
maturity date of such requested Banker's Acceptance (which date shall be a
Business Day), the purpose for which such Banker's Acceptance is to be
issued, and the beneficiary of the instrument to which the requested
Banker's Acceptance relates.
(b) RESPONSIBILITIES OF THE AGENT; ISSUANCE. The Agent shall
determine, as of the Business Day immediately preceding the requested
effective date of issuance of the Banker's Acceptance set forth in the
notice from GDT, on behalf of the Borrower requesting the Banker's
Acceptance pursuant to SECTION 3B.4(a), the amount of the unused Banker's
Acceptance Subfacility, such Borrower's Availability and Aggregate
Availability as of such date. If (i) the terms of the proposed Banker's
Acceptance are acceptable to the Agent in its reasonable discretion, (ii)
the face amount of the requested Banker's Acceptance is less than or equal
to each of such unused Banker's Acceptance Subfacility, Aggregate
Availability and such Borrower's Availability, and (iii) the Agent has
received a certificate from GDT, on behalf of the Borrower requesting the
Banker's Acceptance, stating that the applicable conditions set forth in
Article 11 have been satisfied, then the Agent shall issue or cause to be
issued such Banker's Acceptance for the account of such Borrower.
3B.5 BANKER'S ACCEPTANCE REIMBURSEMENT OBLIGATIONS; DUTIES OF
ISSUER.
(a) REIMBURSEMENT. Notwithstanding any provisions to the
contrary in any Banker's Acceptance Agreement, the Borrower requesting a
Banker's Acceptance shall reimburse BOA or any other accepting institution
for any payments made by BOA or such other accepting institution under such
Banker's Acceptance in accordance with its terms immediately after the
payment by BOA or such other accepting institution. Any payments made by
BOA or such other accepting institution under a Banker's Acceptance not
reimbursed when due under the terms of such Banker's Acceptance or the
Banker's Acceptance Agreement pertaining thereto shall bear interest,
payable on demand, at the Reference Rate until BOA or such other accepting
institution is reimbursed in full.
(b) DUTIES OF ISSUER. Any action taken or omitted to be taken
by BOA or any other accepting institution under or in connection with any
Banker's Acceptance, if taken or omitted in the absence of gross negligence
or willful misconduct, shall not put BOA or such other accepting
institution under any resulting liability to any Lender, or, assuming that
BOA or such other accepting institution has complied with the procedures
specified in SECTION 3B.4, relieve any Lender of its obligations hereunder
to BOA or such other accepting institution.
3B.6 PARTICIPATIONS.
(a) PURCHASE OF PARTICIPATIONS. Immediately upon issuance by
BOA or any other accepting institution in accordance with SECTION 3B.4,
each Lender shall be deemed to have irrevocably and unconditionally
purchased and received without recourse or warranty, an undivided interest
and participation in (i) in the case of a Banker's Acceptance issued by
BOA, such
EX-10.26-44
Banker's Acceptance, equal to such Lender's Pro Rata Share of the face
amount thereof, or (ii) in the case of a Banker's Acceptance issued by an
accepting institution other than BOA, the Agent's guaranty or reimbursement
obligations to such accepting institution in connection with the issuance
of such Banker's Acceptance, equal to such Lender's Pro Rata Share of the
face amount of such Banker's Acceptance (including, without limitation, in
either case, all obligations of the Borrower requesting the Banker's
Acceptance with respect thereto, other than amounts owing to BOA or any
other accepting institution under SECTION 3B.8(b), and any security
therefor or guaranty pertaining thereto).
(b) SHARING OF BANKER'S ACCEPTANCE PAYMENTS. In the event that
BOA or any other accepting institution pays the face amount of the draft to
which any Banker's Acceptance relates pursuant to the terms thereof, and
BOA or such other accepting institution shall not have been repaid such
amount pursuant to SECTION 3B.7, the Agent shall notify each Lender, and
each Lender shall unconditionally pay to the Agent for the account of BOA
or such other accepting institution, as and when provided hereinbelow, an
amount equal to such Lender's Pro Rata Share of the amount of such payment
in Dollars and in same day funds. If the Agent so notifies the Lenders by
not later than 11:00 a.m. (New York time) on any Business Day, each Lender
shall make available to the Agent the amount of such payment, as provided
in the immediately preceding sentence, on such Business Day. If the Agent
so notifies the Lenders after 11:00 a.m. (New York time) on any Business
Day, each Lender shall make available to the Agent the amount of such
payment, as provided in the second preceding sentence, together with
interest thereon at the Federal Funds Rate, by not later than 11:00 a.m.
(New York time) on the next Business Day. Such amounts paid by the Lenders
to the Agent shall constitute Revolving Loans which shall be deemed to have
been requested by the Borrower for whose account the Banker's Acceptance
was issued pursuant to SECTION 2.1.
(c) SHARING OF REIMBURSEMENT OBLIGATION PAYMENTS. Whenever the
Agent receives a payment from a Borrower for whose account a Banker's
Acceptance was issued on account of a Banker's Acceptance Reimbursement
Obligation as to which the Agent has previously received for the account of
BOA or such other accepting institution payment from a Lender pursuant to
this SECTION 3B.6, the Agent shall promptly pay to such Lender, such
Lender's Pro Rata Share of such payment from such Borrower in Dollars.
Each such payment shall be made by the Agent on the Business Day on which
the Agent receives immediately available funds paid to such Person pursuant
to the immediately preceding sentence, if received prior to 11:00 a.m. (New
York time) on such Business Day and otherwise on the next succeeding
Business Day.
(d) DOCUMENTATION. Upon the request of any Lender, the Agent
shall furnish to such Lender copies of any draft to which a Banker's
Acceptance relates, any Banker's Acceptance Agreement, any application for
any Banker's Acceptance and any guaranty in connection with the issuance of
any Banker's Acceptance by an accepting institution other than BOA to which
the Agent is party and such other documentation as may reasonably be
requested by such Lender.
(e) OBLIGATIONS IRREVOCABLE. The obligations of each Lender to
make payments to the Agent with respect to any Banker's Acceptance or with
respect to any guaranty or reimbursement obligation of the Agent with
respect to a Banker's Acceptance, and the obligations of each Borrower to
make payments to the Agent, for the account of the Lenders, shall be
irrevocable, not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
(assuming, in the
EX-10.26-45
case of the obligations of the Lenders to make such payments, that the
Agent has caused such Banker's Acceptance to be issued in accordance with
SECTION 3B.4), including, without limitation, any of the following
circumstances:
(i) Any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) The existence of any claim, set-off, defense or other
right which any Borrower may have at any time against the payee
of any Banker's Acceptance or any holder of any Banker's
Acceptance (or any Person for whom any such holder may be
acting), any Lender, BOA, any accepting institution other than
BOA, or any other Person, whether in connection with this
Agreement, any Banker's Acceptance, the transactions contemplated
herein or any unrelated transactions (including any underlying
transactions between any Borrower or any other Person and the
beneficiary of any Banker's Acceptance) or any failure of the
Agent to notify a Lender of the issuance of a Banker's
Acceptance;
(iii) The surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(iv) The occurrence of any Default or Event of Default.
3B.7 PAYMENT OF BANKER'S ACCEPTANCE REIMBURSEMENT OBLIGATIONS.
(a) PAYMENT TO ISSUER. The Borrowers agree, jointly and
severally, to pay to the Agent, in the case of a Banker's Acceptance issued
by BOA, or such accepting institution, in the case of a Banker's Acceptance
issued by an accepting institution other than BOA, the amount of all
Banker's Acceptance Reimbursement Obligations and other amounts payable to
BOA or such other accepting institution under or in connection with any
Banker's Acceptance immediately when due, irrespective of any claim, set-
off, defense or other right which any Borrower may have at any time against
BOA or such other accepting institution or any other Person.
(b) RECOVERY OR AVOIDANCE OF PAYMENTS. In the event any payment
by or on behalf of any of the Borrowers received by the Agent with respect
to any Banker's Acceptance (or any guaranty or reimbursement obligation
relating thereto) and distributed by the Agent to the Lenders on account of
their respective participations therein is thereafter set aside, avoided or
recovered from the Agent or BOA in connection with any receivership,
liquidation or bankruptcy proceeding, the Lenders shall, upon demand by the
Agent, pay to the Agent, for its account or the account of BOA, their
respective Pro Rata Shares of such amount set aside, avoided or recovered
together with interest at the rate required to be paid by the Agent or BOA
upon the amount required to be repaid by it.
3B.8 COMPENSATION FOR BANKER'S ACCEPTANCES.
(a) BANKER'S ACCEPTANCE FEES. The Borrowers jointly and
severally agree to pay to the Agent with respect to each Banker's
Acceptance, for the account of each Lender, the Banker's Acceptance Fee in
accordance with the terms of SECTION 4.4A.
(b) ACCEPTING INSTITUTION FEES AND CHARGES. The Borrowers
jointly and severally agree to pay to the Agent, for the account of the
EX-10.26-46
accepting institution with respect to any Banker's Acceptance (whether BOA
or another accepting institution), solely for such accepting institution's
account, such fees and other charges as are charged by BOA or such other
accepting institution for banker's acceptances issued by it, including,
without limitation, its standard fees for issuing, administering, paying
and cancelling banker's acceptances, as and when assessed.
3B.9 INDEMNIFICATION; EXONERATION.
(a) INDEMNIFICATION. In addition to amounts payable as
elsewhere provided in this ARTICLE 3B, the Borrowers jointly and severally
agree to protect, indemnify, pay and save the Lenders and the Agent
harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) which any Lender or the Agent may incur or be subject to
as a consequence, directly or indirectly, of (i) the issuance of any
Banker's Acceptance other than, in the case of BOA (or, if any other Lender
shall be the accepting institution with respect to any Banker's Acceptance,
such other Lender), as a result of its gross negligence or willful
misconduct, as determined by a court of competent jurisdiction, or (ii) the
failure of BOA to pay the face amount of the obligation to which any
Banker's Acceptance relates as a result of any Government Act.
(b) ASSUMPTION OF RISK BY THE BORROWERS. As among the
Borrowers, the Lenders and the Agent, the Borrowers assume all risks of the
acts and omissions of, or misuse of any of the Banker's Acceptances by, the
respective holders of such Banker's Acceptances. In furtherance and not in
limitation of the foregoing, subject to the provisions of the applications
for the issuance of Banker's Acceptances, the Lenders and the Agent shall
not be responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any Person in
connection with the application for and issuance of instruments with
respect to any of the Banker's Acceptances, even if it should prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any transfer or assignment or
purported transfer or assignment of any Banker's Acceptance or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason; (iii) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (iv) errors in interpretation of technical terms; (v) any loss or
delay in the transmission or otherwise of any payment under a Banker's
Acceptance; (vi) the misapplication by the beneficiary of any Banker's
Acceptance or the proceeds of any payment under such Banker's Acceptance;
or (vii) any consequences arising from causes beyond the control of the
Lenders or the Agent, including, without limitation, any Government Acts.
None of the foregoing shall affect, impair or prevent the vesting of any of
the Agent's rights or powers under this SECTION 3B.9.
(c) EXONERATION. In furtherance and extension, and not in
limitation, of the specific provisions set forth above, any action taken or
omitted by the Agent or BOA under or in connection with any of the Bankers
Acceptances, if taken or omitted in good faith, shall not put any Lender or
the Agent under any resulting liability to any Borrower or relieve any
Borrower of any of its obligations hereunder to any such Person.
EX-10.26-47
4. INTEREST AND FEES.
4.1 INTEREST. (a) The Borrowers agree, jointly and severally,
to pay the Agent for the account of the Lenders interest on the unpaid
principal balance of the (i) Reference Rate Loans at a fluctuating per
annum rate equal to one percent (1.0%) PLUS the Reference Rate and (ii)
Eurodollar Rate Loans at a fluctuating per annum rate equal to two and one-
half percent (2.5%) PLUS the applicable Eurodollar Rate. Each change in
the Reference Rate shall be reflected in the foregoing interest rate as of
the effective date of such change. Interest charges (whether in respect of
Loans, Letters of Credit or Banker's Acceptances) shall be computed on the
basis of a year of 360 days and actual days elapsed and will be payable to
the Lenders on each applicable Interest Payment Date, in the case of Loans,
and as otherwise provided herein, in the case of Letters of Credit and
Banker's Acceptances.
(b) Notwithstanding anything to the contrary contained in
SECTION 4.1(a), if any Default or Event of Default occurs, then, while any
such Default or Event of Default is continuing, the Obligations will bear
interest at the Default Rate applicable thereto.
4.2 MAXIMUM INTEREST RATE. In no event shall any interest rate
exceed the maximum rate permissible for corporate borrowers by applicable
law (the "Maximum Rate"). If, in any month, any interest rate, absent such
limitation, would have exceeded the Maximum Rate, then the interest rate
for that month shall be the Maximum Rate, and, if in future months, that
interest rate would otherwise be less than the Maximum Rate, then that
interest rate shall remain at the Maximum Rate until such time as the
amount of interest paid hereunder equals the amount of interest which would
have been paid if the same had not been limited by the Maximum Rate. In the
event that, upon payment in full of the Obligations under this Agreement,
the total amount of interest paid or accrued under the terms of this
Agreement is less than the total amount of interest which would have been
paid or accrued if the interest rates set forth in this Agreement had at
all times been in effect, then the Borrowers jointly and severally agree,
to the extent permitted by applicable law, to pay to the Lenders an amount
equal to the difference between (a) the lesser of (i) the amount of inter-
est which would have been charged if the Maximum Rate had, at all times,
been in effect or (ii) the amount of interest which would have accrued had
the interest rates set forth in this Agreement, at all times, been in
effect and (b) the amount of interest actually paid or accrued under this
Agreement. In the event that the Agent and/or Lenders receive, collect or
apply as interest any sum in excess of the Maximum Rate, such excess amount
shall be applied to the reduction of the principal balance of the
Obligations, in the inverse order of maturity, and any funding indemnities
in connection therewith under SECTION 4.8, and, if no such principal or
such funding indemnity is then outstanding, such excess or part thereof
remaining shall be paid to the Borrowers.
4.3 CLOSING FEES. In connection with the establishment of the
Commitments, in consideration of the making of Loans under this Agreement
and in order to compensate the Agent for costs and expenses (other than
expenses for which the Borrowers have agreed to reimburse the Agent or the
Lenders or both) associated with structuring, processing, approving,
closing and monitoring the Loans, the Borrowers jointly and severally agree
to pay to the Agent on the Effective Date, for the account of the Lenders,
a non-refundable closing fee (the "Closing Fee") in the amount of
$1,500,000, of which amount the Borrower has heretofore paid the Agent
$100,000.
EX-10.26-48
4.4 LETTER OF CREDIT FEE. In connection with the establishment
of the L/C Subfacility, the Borrowers jointly and severally agree to pay to
the Agent, for the benefit of the Lenders, for each Letter of Credit, a fee
("Letter of Credit Fee") equal to one and one-half percent (1.50%) per
annum of the undrawn face amount of each such Letter of Credit, in addition
to all out-of-pocket costs, fees and expenses incurred by the Lenders or
the Agent in connection with the application for issuance of or amendment
to any Letter of Credit. The Letter of Credit Fee shall be payable in
advance (i) upon the issuance of each Letter of Credit for the number of
days remaining in the month during which such Letter of Credit was issued
and (ii) thereafter, monthly, on the first day of each month or part
thereof during which each such Letter of Credit remains outstanding. The
Letter of Credit Fee shall be computed on the basis of a 360-day year for
the actual number of days elapsed.
4.4A BANKER'S ACCEPTANCE FEES. In connection with the
establishment of the Banker's Acceptance Subfacility, the Borrowers
jointly and severally agree to pay to the Agent monthly, for the benefit of
the Lenders, for each Banker's Acceptance, a fee ("Banker's Acceptance
Fee"), equal to two and one-half percent (2.50%) per annum of the face
amount of each Banker's Acceptance issued pursuant to this Agreement. In
addition, the Borrowers jointly and severally agree to pay to the Agent for
the account of a Lender or the Agent, as the case may be, all associated
charges (including without limitation any charges associated with the
discount of any Banker's Acceptance) incurred by such Lender or the Agent,
as the case may be, in connection therewith. The Banker's Acceptance Fee
shall be payable monthly in arrears on the first day of each month
following the month during which any Banker's Acceptance remains
outstanding. The Banker's Acceptance Fee shall be computed on the basis of
a 360-day year for the actual number of days elapsed.
4.5 COMMITMENT FEE. In connection with and as consideration
for holding available for the use of the Borrowers under this Agreement the
unused Aggregate Maximum Revolver Amount, the Maximum Revolver Amount and
the Term Loan Commitment, the Borrowers jointly and severally agree to pay
to the Agent, for the account of each Lender, a facility fee ("Facility
Fee") accruing at the rate of one-half of one percent (.50%) per annum from
and after the Effective Date until the Revolving Credit Termination Date,
upon the average daily amount of the difference, if any, of (i) (x) the
amount of such Lender's Commitment MINUS (y) an amount equal to the amount
of reserves established by the Agent multiplied by such Lender's Pro Rata
Share, MINUS (ii) such Lender's Pro Rata Share of the daily average
outstanding amount of Term Loans (or, if greater, such Lender's Pro Rata
Share of $50,000,000) PLUS such Lender's Pro Rata Share of the daily
average outstanding amount of Revolving Loans PLUS the daily average face
amount of all issued and outstanding Letters of Credit and Banker's
Acceptances. All Facility Fees shall be payable monthly, in arrears, on
the first Business Day of each calendar month beginning after the Effective
Date. All Facility Fees shall be calculated on the basis of a year of 360
days and actual days elapsed.
4.6 INCREASED CAPITAL; INCREASED COSTS. (a) If any Lender
determines that compliance with any law or regulation or with any guideline
or request from any central bank or other governmental authority (whether
or not having the force of law) applicable to banks organized under the
laws of the United States of America or any political subdivision thereof,
has or would have the effect of reducing the rate of return on the capital
of such Lender or any corporation controlling such Lender as a consequence
of, or with reference to, such Lender's Commitment, its making or
maintaining Loans or issuing Letters of Credit or Banker's Acceptances
hereunder below the rate
EX-10.26-49
which the Lender or such other corporation could have achieved but for such
compliance (taking into account the policies of such Lender or such
corporation with regard to capital), then the Borrowers agree, jointly and
severally, from time to time, upon demand by such Lender (with a copy of
such demand to the Agent), immediately to pay to such Lender or other
corporation, an additional amount sufficient to compensate such Lender or
such other corporation for such reduction.
(b) If any law, treaty, order, directive, rule or regulation
adopted, issued or becoming effective after the Effective Date or any
change in any law or regulation or in the interpretation thereof by any
court or administrative or governmental authority charged with the
administration thereof (in any case, whether or not having the force of
law) or compliance by the Agent, any issuer of a Letter of Credit or
Banker's Acceptance or any Lender with respect thereto from that in effect
as of the Effective Date shall either (i) impose, modify or deem applicable
any reserve (other than any reserve factored into the Eurodollar Reserve
Percentage with respect to a Eurodollar Rate Loan), special deposit or
similar requirement against loans, letters of credit or banker's
acceptances generally, or participation in any of the foregoing or (ii)
impose on the Agent, such issuer or such Lender any other condition
regarding loans, letters of credit or banker's acceptances generally, or
participation in any of the foregoing, and the result of any event referred
to in the preceding clause (i) or (ii) shall be to increase the cost to the
Agent, such issuer or such Lender of issuing or maintaining, or, in the
case of such Lender, having a participation in, Letters of Credit or
Banker's Acceptances, or making or maintaining, or in the case of such
Lender, having a participation in, any Loans, then, upon demand by the
Agent, such issuer or such Lender (with a copy to the Agent in the case of
any demand by any such issuer or by any such Lender), the Borrowers,
jointly and severally, shall promptly pay to the Agent for the benefit of
the Agent, such issuer or such Lender from time to time as specified by the
Agent, such issuer or such Lender (with a copy to the Agent if so specified
by any such issuer or by any such Lender), additional amounts which shall
be sufficient to compensate the Agent, such issuer or such Lender for such
increased cost.
(c) If any law, treaty, order, directive, rule or regulations
shall be adopted, issued or become effective after the Effective Date or if
any change in any law, treaty, order, directive, rule or regulation from
that in effect on the Effective Date or in the interpretation thereof by
any governmental or other regulatory authority charged with the
administration thereof (in any case, whether or not having the force of
law) and including in any event, all risk-based capital guidelines
heretofore adopted by the Comptroller of the Currency, the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board") or
any other banking regulatory agency, domestic or foreign, to the extent
that any provision contained therein does not have to be complied with as
of the date hereof, shall, or if the compliance by the Agent, any issuer of
a Letter of Credit or Banker's Acceptance or any Lender with any guideline
or request from any central bank or other governmental authority, shall
affect or would affect the amount of capital required or expected to be
maintained by the Agent, such issuer or such Lender or any affiliate of the
Agent, such issuer or such Lender, and the Agent, such issuer or such
Lender determines that the amount of such capital is increased by or based
upon the existence of loans, banker's acceptances or letters of credit
generally, or participation in any of the foregoing (or similar contingent
obligations), then, upon demand by the Agent, such issuer or such Lender,
as the case may be (with a copy to the Agent in the case of any demand by
such issuer or by any such Lender), the
EX-10.26-50
Borrowers, jointly and severally, shall pay to the Agent for the benefit of
the Agent, such issuer or such Lender from time to time such additional
amounts as may be specified by the Agent, such issuer or such Lender as may
be sufficient to compensate it in light of such circumstances, to the
extent that the Agent, such issuer or such Lender determines such increase
in capital to be allocable to the issuance or maintenance of the Banker's
Acceptances or Letters of Credit, or, in the case of such Lender, to its
participation in the Letters of Credit or Banker's Acceptance, or to the
making or maintenance, or in the case of such Lender, to its participation
in, any Loans.
(d) A certificate as to the calculation of any amounts payable
by the Borrowers pursuant to this SECTION 4.6 shall be submitted to GDT, on
behalf of the Borrowers, by the Agent or any affected Lender and shall,
absent manifest error, be conclusive and binding for all purposes. Each
Lender agrees promptly to notify GDT and the Agent, and the Agent, if and
to the extent it claims any amounts under this SECTION 4.6, agrees promptly
to notify GDT, of any circumstances that would cause the Borrowers to pay
additional amounts pursuant to this SECTION 4.6; PROVIDED that the failure
to give such notice shall not affect the Borrower's obligations to pay such
additional amounts as otherwise provided herein.
4.7 FEES NOT INTEREST; FULLY EARNED. All fees are for
compensation for services and are not, and shall not be deemed to be,
interest or a charge for the use of money. The fees provided for in
SECTIONS 4.3, 4.4, 4.4A and 4.5 shall be fully earned when due and payable,
and no such fee shall be refundable or rebatable by reason of any
prepayment, acceleration upon an Event of Default or any other
circumstance.
4.8 FUNDING INDEMNITIES. The Borrowers will jointly and
severally indemnify the Agent and each Lender (including, without
limitation, BankAmerica in respect of BA Revolving Loans) against, and on
demand reimburse each Lender, BankAmerica and the Agent for, any loss,
premium, penalty or expense which such Lender, BankAmerica or the Agent may
pay or incur (including, without limitation, any loss or expense incurred
by reason of the relending, depositing or other employment of funds
acquired by such Lender, BankAmerica or the Agent to fund a Eurodollar Rate
Loan) as a result of (i) any prepayment or repayment of a Eurodollar Rate
Loan on a date prior to the last day of the Interest Period applicable
thereto or (ii) any failure by any Borrower to borrow any Eurodollar Rate
Loan on a date specified therefor in a Notice of Borrowing, except to the
extent such failure results from a default by such Lender, BankAmerica or
the Agent in making the requisite funds available to any Borrower
hereunder, or to convert any Reference Rate Loan to a Eurodollar Rate Loan
or continue a Eurodollar Rate Loan as such on a date specified therefor in
a Notice of Conversion/Continuation. Each Lender, BankAmerica and/or the
Agent, as the case may be, shall furnish GDT with a certificate setting
forth the basis for determining any additional amount to be paid to it
hereunder, and such certificate shall be conclusive, absent manifest error,
as to the contents thereof.
4.9 ILLEGALITY. (a) If, after the date of this Agreement, the
introduction of, or any change in, any applicable law, rule or regulation
or in the interpretation or administration thereof by any governmental
authority shall, in the opinion of counsel to any Lender, BankAmerica or
the Agent, make it unlawful for such Lender, BankAmerica or the Agent to
make or maintain any Eurodollar Rate Loan, then such Lender, BankAmerica or
the Agent may, by notice to the Borrower and, in the case of any notice by
a Lender or
EX-10.26-51
BankAmerica, the Agent, declare that such Eurodollar Rate Loan shall be due
and payable. The Borrowers shall repay any Eurodollar Rate Loan declared
so due and payable in full on the last day of the Interest Period
applicable thereto, unless such Eurodollar Rate Loan is required by law to
be sooner repaid, in which case the Borrowers shall repay such Eurodollar
Rate Loan on the date required by law. Repayment shall, in any case, be
made together with accrued interest and any additional amount owing under
SECTION 4.6 hereof. Each Lender, BankAmerica or the Agent will promptly
notify the Borrower of any event of which such Lender, BankAmerica and/or
the Agent, as the case may be, has knowledge which will entitle it to
prepayment pursuant to this SECTION 4.9(a); PROVIDED that the failure to
give such notice shall not affect the Borrowers' obligations to pay any
amount required hereunder as provided herein.
(b) If any Borrower is required as provided in SECTION 4.9(a)
above to prepay any Eurodollar Rate Loan prior to the last day of the
Interest Period applicable thereto, the Agent shall have the right, but not
the obligation, to convert such Eurodollar Rate Loan to a Reference Rate
Loan in the amount of such prepayment and shall, promptly after such
conversion, notify the affected Lender or BankAmerica, as the case may be,
and GDT of such conversion. Such Reference Rate Loan shall be considered
to be part of the same Borrowing as the Eurodollar Rate Loan that was
prepaid and the Borrowers shall jointly and severally be obligated to repay
the principal of and interest on such Reference Rate Loan at the same time
or times as required for the other Eurodollar Rate Loans comprising such
Borrowing.
(c) If, after the date of this Agreement, the introduction of,
or any change in, any applicable law, rule or regulation or in the
interpretation or administration thereof by any governmental authority
shall, in the opinion of counsel to any Lender, BankAmerica or the Agent,
make it unlawful for such Lender, BankAmerica or the Agent to issue or
maintain any portion of a Letter of Credit or Banker's Acceptance, then
such Lender, BankAmerica or the Agent may notify GDT and, in the case of
any notice given by a Lender or BankAmerica, the Agent of such illegality.
Notwithstanding anything to the contrary contained in the Agreement,
neither BankAmerica, the Agent nor any Lender shall be under any obligation
to issue any Letter of Credit or Banker's Acceptance unless BankAmerica,
the Agent or such Lender, as the case may be, determines in its sole
discretion that the circumstances giving rise to such illegality no longer
exist.
4.10 UNAVAILABILITY OF EURODOLLAR RATE LOANS. If, with respect
to any Borrowing consisting of Eurodollar Rate Loans requested on behalf of
any Borrower, the Agent or the Majority Lenders shall have determined in
good faith (which determination shall, save for manifest error, be
conclusive and binding upon the Borrowers) that (a) deposits of sufficient
amount and maturity for funding such Borrowing are not available to the
Lenders in the relevant market in the ordinary course of business or (b) by
reason of circumstances affecting the relevant market, adequate and fair
means do not exist for ascertaining the rate of interest to be applicable
to such Borrowing, then (i) the Agent shall promptly give notice thereof to
GDT, (ii) the notice requesting such Borrowing shall, unless GDT otherwise
notifies the Agent, automatically be amended to request a Reference Rate
Loan instead of a Eurodollar Rate Loan and (iii) no Lender shall be under
any obligation to make additional Eurodollar Rate Loans to any Borrower,
unless and until the Agent shall have notified GDT that Eurodollar Rate
Loans are again available hereunder.
EX-10.26-52
4.11 TAXES. (a) Subject to SECTIONS 4.11(b) and 4.11(c), each
payment or prepayment hereunder and under the other Loan Documents shall be
made without set-off or counterclaim and free and clear of, and without
deduction for, any present or future withholding or other taxes, duties or
charges and all liabilities with respect thereto, of any nature imposed on
such payments or prepayments by or on behalf of any government or any
political subdivision or agency thereof or therein, except for Excluded
Taxes (all such taxes, levies, duties, imposts, deductions, charges and
liabilities, except Excluded Taxes, being hereinafter referred to as
"Taxes"). If any such Taxes are so levied or imposed on any payment or
prepayment to any Lender or the Agent or paid by such Lender or the Agent,
the Borrowers will make additional payments to the Agent in such amounts as
may be necessary so that the net amount received by such Lender or the
Agent after withholding or deduction for or on account of such Taxes,
including deductions applicable to additional sums payable under this
SECTION 4.11(a) (other than Excluded Taxes), will be equal to the amount
provided for herein. Whenever any Taxes are payable by the Borrowers with
respect to any payments or prepayments hereunder, GDT, on behalf of the
Borrowers, shall furnish promptly to the Agent for the account of the
applicable Lender official receipts (to the extent that the relevant
governmental authority delivers such receipts) evidencing payments of any
such Taxes so withheld or deducted. If the Borrowers fail to pay any such
Taxes when due to the appropriate taxing authority or fail to remit to the
Agent for the account of the applicable Lender or the Agent, as applicable,
the required receipts evidencing payment of any such Taxes so withheld or
deducted, the Borrowers shall jointly and severally indemnify the affected
Lender or the Agent, as applicable, for any incremental Taxes and any
incremental Excluded Taxes or interest or penalties that may become payable
by such Lender or the Agent, as applicable, as a result of any such
failure.
(b) (i) Except as provided in SECTION 4.11(b)(ii) below, each
Lender that is not a "United States person" (as such term is defined in
Section 7701(a)(30) of the Code) shall submit to GDT, on behalf of the
Borrowers, and the Agent on or before the Effective Date (or, in the case
of a Person that becomes a Lender after the Effective Date by assignment,
promptly upon such assignment), two duly completed and signed copies of
either (1) Form 1001 of the United States Internal Revenue Service
entitling such Lender to a complete exemption from withholding for all
amounts to be received by such Lender pursuant to this Agreement or (2)
Form 4224 of the United States Internal Revenue Service relating to all
amounts to be received by such Lender pursuant to this Agreement. Each
such Lender shall, from time to time after submitting either such form,
submit to GDT, on behalf of the Borrowers, and the Agent such additional
duly completed and signed copies of one or the other such forms (or such
successor forms or other documents as shall be adopted from time to time by
the relevant United States taxing authorities) as may be (1) reasonably
requested in writing by GDT, on behalf of the Borrowers, or the Agent and
(2) appropriate under then current United States law or regulations to
avoid United States withholding taxes on payments in respect of any amounts
to be received by such Lender pursuant to this Agreement. Upon the
reasonable request of GDT, on behalf of the Borrowers, or the Agent, each
Lender that has not provided the forms or other documents, as provided
above, on the basis of being a United States person shall submit to GDT, on
behalf of the Borrowers, and the Agent a certificate to the effect that it
is such a "United States person."
(ii) If any Lender which is not a "United States person"
determines that it is unable to submit to GDT, on behalf of the Borrowers,
or the Agent any form or certificate that such Lender is requested to
submit
EX-10.26-53
pursuant to the preceding paragraph, or that it is required to withdraw or
cancel any such form or certificate, or that any such form or certificate
previously submitted has otherwise become ineffective or inaccurate, such
Lender shall promptly notify GDT, on behalf of the Borrowers, and the Agent
of such fact.
(iii) Except as provided in SECTION 4.11(c) below, the
Borrowers shall not be required to pay any additional amount in respect of
Taxes to any Lender if and only to the extent that (A) such Lender is
subject to such Taxes (in such case, only to the extent of the tax rate
then in effect) on the date this Agreement is executed by such Lender (or
in the case of a Person that becomes a Lender after the Effective Date by
assignment, on the date of such assignment) or would be subject to such
Taxes on such date if a payment hereunder had been received by it on such
date; (B) such Lender becomes subject to such Taxes subsequent to the date
referred to in clause (A) above as a result of a change in the
circumstances of such Lender, other than a change in applicable law
(including without limitation an increase in any applicable tax rate),
including without limitation a change in the residence, place of
incorporation or principal place of business of the Lender, a change in the
branch or lending office of the Lender participating in the transactions
set forth herein or as a result of the sale by the Lender of participating
interests in such Lender's creditor position(s) hereunder; PROVIDED,
HOWEVER, that the Borrowers will be jointly and severally required to pay
any additional amount in respect of Taxes to any Lender to the extent that
after a change in the circumstances (as described above) of such Lender a
subsequent change in any applicable law results in an additional amount
that such Lender is subject to with respect to Taxes; or (C) such Taxes
would not have been incurred but for the failure of such Lender to file
with the appropriate tax authorities and/or provide to GDT, on behalf of
the Borrowers, or the Agent any form or certificate that it was required so
to do pursuant to this SECTION 4.11(b) and entitled so to do under
applicable law.
(c) In addition, the Borrowers agree, jointly and severally, to
pay any present or future stamp or documentary taxes, any intangibles tax
or any other sales, excise or property taxes, charges or similar levies now
or hereafter assessed that arise from and are attributable to the
execution, delivery of, or otherwise with respect to, this Agreement or the
other Loan Documents and any and all recording fees relating to any Loan
Documents securing the Obligations (hereinafter referred to as "Other
Taxes").
(d) The Borrowers will, jointly and severally, indemnify and
pay to each Lender and the Agent the full amount of Taxes or Other Taxes
which the Borrowers are required to pay to any Lender or the Agent pursuant
to this SECTION 4.11, including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this SECTION
4.11 duly paid or payable by such Lender or the Agent and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto. Indemnification payments shall be made within 30 days
from the date such Lender or the Agent makes written demand therefor.
(e) Without prejudice to the survival of any other agreements
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this SECTION 4.11 shall survive the payment in full of
principal and interest hereunder indefinitely.
EX-10.26-54
5. PAYMENTS AND PREPAYMENTS.
5.1 REVOLVING LOANS. The Borrowers jointly and severally agree
to repay the outstanding principal balance of the Revolving Loans, PLUS all
accrued but unpaid interest thereon, PLUS all accrued but unpaid fees
payable pursuant to ARTICLE 4, on the Termination Date. The Borrowers may
prepay Revolving Loans at any time, and reborrow subject to the terms of
this Agreement. In addition, and without limiting the generality of the
foregoing, the Borrowers agree, jointly and severally, to pay to the
Lenders on demand the amount by which outstanding Revolving Loans PLUS the
Letter of Credit Obligations and Banker's Acceptance Obligations of all
Borrowers exceeds the Aggregate Maximum Revolver Amount, and the amount by
which outstanding Revolving Loans to any Borrower PLUS the Letter of Credit
Obligations and Banker's Acceptance Obligations of such Borrower issued for
such Borrower's account exceeds such Borrower's Maximum Revolver Amount.
5.2 REDUCTION OR TERMINATION OF REVOLVING CREDIT COMMITMENTS.
The Borrowers shall have the right, at any time, to terminate in whole, or
at any time to permanently reduce in part, the Revolving Credit Commitments
up to an amount equal to the Aggregate Availability at such time. GDT, on
behalf of the Borrowers, shall give not less than five (5) Business Days'
prior written notice to the Agent designating the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction. Promptly after receipt of a notice of such termination
or reduction, the Agent shall notify each Lender of the proposed termina-
tion or reduction. Such termination or partial reduction of the Revolving
Credit Commitments shall be effective on the date specified in the
Borrowers' notice and shall reduce the Revolving Credit Commitment of each
Lender proportionately in accordance with its Pro Rata Share. Any such
partial reduction of the Revolving Credit Commitments shall be in an
aggregate minimum amount of $1,000,000, and integral multiples of
$1,000,000 in excess of that amount. If the Revolving Credit Commitments
are terminated in whole or permanently reduced in part at any time prior to
the third Anniversary Date pursuant to this Section, the Borrowers jointly
and severally shall pay to the Agent for the account of each Lender an
early termination fee equal to such Lender's Pro Rata Share of the amount
determined in accordance with the following table:
Period in which Early
early termination Termination
occurs Fee
----------------- -----------
On or prior to second 2% of amount
Anniversary Date terminated or
permanently
reduced
After second Anniver- 1% of amount
sary Date but on or terminated or
prior to third permanently
Anniversary Date reduced
5.3 REPAYMENT OF TERM LOANS. GDT shall repay the principal of
the Term Loans in accordance with the terms of the Term Notes as described
in SECTION 2.1(a).
EX-10.26-55
5.4 VOLUNTARY PREPAYMENTS OF TERM LOANS. GDT may prepay the
principal of the Term Loans in whole or in part at any time and from time
to time upon at least five (5) Business Days' prior written notice to the
Agent and the Lenders and upon payment of a prepayment premium in an amount
equal to the percentage (determined in accordance with the following table)
of the principal amount to be prepaid:
Period in which
prepayment occurs Prepayment Premium
----------------- ------------------
On or prior to second 2% of principal
Anniversary Date amount prepaid
After second 1% of principal
Anniversary Date but amount prepaid
on or prior to third
Anniversary Date
All voluntary prepayments of the principal of the Term Loans shall be
accompanied by the payment of all accrued but unpaid interest on the Term
Loans to the date of prepayment. Any voluntary prepayment under this
SECTION 5.4 of less than all of the outstanding principal of a Term Loan
shall be in an aggregate minimum amount of $1,000,000, and integral
multiples of $1,000,000 in excess of that amount, and shall be applied to
reduce the amount of each of the remaining installments of principal of
such Term Loan in inverse order of maturity.
5.5 MANDATORY PREPAYMENTS OF THE TERM LOANS. GDT shall prepay
the entire unpaid principal balance of the Term Loans, and all accrued but
unpaid interest thereon, (a) upon the termination of this Agreement for any
reason and (b) if any Borrower makes a Distribution to Holdings by any
means other than those described in clauses (a) and (b) of the definition
of "Distribution" in SECTION 1.1. GDT shall also be required to make
prepayments on the Term Loans as provided in SECTIONS 7.10, 10.5 and 10.6.
Any prepayment under this SECTION 5.5 of less than all of the outstanding
principal amount of the Term Loans shall be applied either (a) to the
remaining installments of principal of the Term Loans in the inverse order
of maturity if the proceeds (together with the value of any property
acceptable to the Majority Lenders which is substituted as Collateral) are
less than the Net Collateral Value of the property the loss, damage,
destruction or other disposition of which resulted in the prepayment or (b)
ratably to each of the remaining installments of principal of the Term
Loans if the proceeds (together with the value of any property acceptable
to the Majority Lenders which is substituted as Collateral) exceed or equal
the Net Collateral Value of the property the loss, damage, destruction or
other disposition of which resulted in the prepayment. GDT shall pay a
prepayment premium in accordance with SECTION 5.4 of the principal amount
prepaid upon any prepayment of Term Loans required or permitted under this
Agreement except for prepayments required or permitted under CLAUSE (b) of
the first sentence of this SECTION 5.5, SECTIONS 7.10, 10.5 and 10.6 or
upon termination pursuant to SECTION 12.2.
5.6 MANNER, TIME AND APPORTIONMENT OF PAYMENTS.
(a) PLACE AND FORM OF PAYMENTS. All payments of principal,
interest, fees, premiums and other sums payable hereunder to the Agent
and/or any Lender shall be made without condition or reservation of right
and
EX-10.26-56
(except for proceeds of Collateral received directly by the Agent) in same
day funds and delivered to the Agent not later than 12:00 noon (New York
time) on the date due to such account of the Agent as the Agent may
designate, for the account of the Agent and/or such Lender, as the case may
be. Funds received by the Agent after that time shall be deemed to have
been paid on the next succeeding Business Day. If any payment of
principal, interest, fees, premiums or other sums payable hereunder becomes
due and payable on a day other than a Business Day, the due date of such
payment shall be extended to the next succeeding Business Day and interest
thereon shall be payable at the applicable Interest Rate during such
extension.
(b) PAYMENTS AS REVOLVING LOANS. All payments of principal,
interest, fees, premiums and other sums due and payable hereunder,
including all Letter of Credit Reimbursement Obligations, Banker's
Acceptance Reimbursement Obligations and reimbursements for expenses
pursuant to SECTION 16.6, may, at the option of the Agent, in its sole dis-
cretion, subject only to the terms of this SECTION 5.6, be paid from the
proceeds of Revolving Loans made hereunder, whether made following a
request by a Borrower pursuant to SECTION 2.2 or a deemed request as
provided in this SECTION 5.6(b) Each of the Borrowers hereby irrevocably
authorizes and directs the Agent to make, and subject to the limitations of
SECTION 2.2(a) the Agent acknowledges that it will make, Revolving Loans in
an amount sufficient to pay principal and interest due the Agent or the
Lenders under this Agreement. Each of the Borrowers hereby irrevocably
authorizes the Lenders to make Revolving Loans upon notice from the Agent
as described in the next succeeding sentence, for the purpose of paying
fees, premiums and other sums payable hereunder, including Letter of Credit
Reimbursement Obligations and Banker's Acceptance Reimbursement
Obligations, and, after notice (either in writing or orally and promptly
confirmed in writing) to GDT and failure to pay, reimbursing expenses
pursuant to SECTION 16.6, and agrees that all such Revolving Loans so made
shall be deemed to have been requested by it pursuant to SECTION 2.1, as of
the date of the aforementioned notice. The Agent shall request Revolving
Loans on behalf of the Borrowers as described in the immediately preceding
sentence by notifying the Lenders by telex, telecopy, telegram, telephone
or other similar form of transmission, of the amount and Funding Date of
the requested Borrowing and that such Borrowing is being requested on the
Borrowers' behalf pursuant to this SECTION 5.6(b). On the requested
Funding Date, as applicable, the Lenders will make the requested Revolving
Loans in accordance with the procedures and subject to the conditions
specified in SECTION 2.2. Any Revolving Loan deemed requested as provided
in this SECTION 5.6(b) shall be a Reference Rate Loan.
(c) CREDIT FOR PAYMENTS. All payments received by the Agent as
proceeds of Accounts or other Collateral whether through deposit into the
BABC Account or otherwise will be the sole property of the Agent, for the
benefit of the Secured Creditors, and will be credited to the BABC Account
as follows: (i) all cash payments received by the Agent at the BABC
Account in New York, New York, including, without limitation, payments made
by wire transfer of immediately available funds, received by the Agent at
or prior to 4:00 p.m. (New York time) on any Business Day will be credited
to the BABC Account as of the date received; (ii) all cash payments
received by the Agent at the BABC Account in New York, New York, including,
without limitation, payments made by wire transfer of immediately available
funds received by the Agent after 4:00 p.m. (New York time) on any Business
Day will be credited to the BABC Account as of the next succeeding Business
Day; and (iii) all payments in the form of checks and other instruments
received by the Agent at
EX-10.26-57
the BABC Account in New York, New York will be credited to the BABC Account
upon collection of immediately available funds in connection therewith.
(d) APPORTIONMENT OF PAYMENTS. Aggregate principal and interest
payments (other than principal and interest payments with respect to BA
Revolving Loans prior to the related Settlement Date or with respect to
Over Advances) and payments with respect to participations in Letters of
Credit and Banker's Acceptances shall be apportioned ratably among all
Lenders holding outstanding Loans or participations in Letters of Credit or
Banker's Acceptances to which such payments relate (according to the unpaid
principal balance thereof or participation therein held by each such
Lender) and payments of the fees shall, as applicable, be apportioned
ratably among the Lenders. All payments shall be remitted to the Agent and
all such payments not relating to principal or interest of specific Loans
or participations in Letters of Credit or Banker's Acceptances, or not
constituting payment of specific fees, and all proceeds of Accounts or
other Collateral received by the Agent from or as to the Borrowers, shall
be applied, ratably, subject to the provisions of this Agreement, FIRST, to
pay any fees, expense reimbursements or indemnities then due to the Agent
from the Borrowers; SECOND, to pay any fees, expense reimbursements or
indemnities then due to the Lenders from the Borrowers; THIRD, to pay
interest due in respect of Over Advances; FOURTH, to pay or prepay
principal of Over Advances; FIFTH, to pay interest in respect of the BA Re-
volving Loans; SIXTH, to pay or prepay principal of BA Revolving Loans;
SEVENTH, to pay interest due in respect of all Loans (other than the BA
Revolving Loans) and Letter of Credit Obligations and Banker's Acceptance
Obligations; EIGHTH, to pay or prepay principal of the Revolving Loans
(other than the BA Revolving Loans) and to pay, prepay or provide cash
collateral in respect of Letter of Credit Obligations and Banker's
Acceptance Obligations; NINTH, to pay or prepay principal of the Term
Loans; and TENTH, to the payment of any other Obligation due to any Secured
Creditor by the Borrowers. The Agent shall promptly distribute to each
Lender at its address set forth on the appropriate signature page hereof,
or at such other address as such Lender may request in writing, such funds
as it may be entitled to receive.
5.7 INDEMNITY FOR RETURNED PAYMENTS. If after receipt of, or
proceeds applied to, the payment of, all or any part of the Obligations,
the Agent or any Lender is compelled to surrender such payment or proceeds
to any Person, because such payment or application of proceeds is
invalidated, declared fraudulent, set aside, determined to be void or
voidable as a preference, impermissible set off, or a diversion of trust
funds, or for any other reason, then the Obligations or part thereof
intended to be satisfied shall be revived and continue and this Agreement
shall continue in full force as if such payment or proceeds had not been
received by the Agent or such Lender and the Borrowers shall be jointly and
severally liable to pay to the Agent or such Lender, and hereby indemnify
the Agent or such Lender and hold the Agent or such Lender harmless for,
the amount of such payment or proceeds surrendered. The provisions of this
SECTION 5.7 shall be and remain effective notwithstanding any contrary
action which may have been taken by the Agent or such Lender in reliance
upon such payment or application of proceeds, and any such contrary action
so taken shall be without prejudice to the Agent or such Lender's rights
under this Agreement and shall be deemed to have been conditioned upon such
payment or application of proceeds having become final and irrevocable.
The provisions of this SECTION 5.7 shall survive the termination of this
Agreement.
EX-10.26-58
6. AGENT'S AND LENDERS' BOOKS AND RECORDS;
MONTHLY STATEMENTS.
6.1 AGENT'S AND LENDERS' BOOKS AND RECORDS; MONTHLY STATEMENTS.
Each of the Borrowers agrees that the Agent's books and records showing the
Obligations and the transactions pursuant to this Agreement and the other
Loan Documents shall be admissible in any action or proceeding arising
therefrom, and shall constitute prima facie proof thereof, irrespective of
whether any Obligation is also evidenced by a promissory note or other in-
strument. The Agent will provide to the Borrowers a monthly statement of
Loans, Letters of Credit, Banker's Acceptances, payments, and other trans-
actions pursuant to this Agreement. Such statement shall be deemed
correct, accurate and binding upon the Borrowers and an account stated
(except for returned payments as provided in SECTION 5.7 and corrections of
errors discovered by the Agent), unless GDT, on behalf of the Borrowers,
notifies the Agent in writing to the contrary within forty-five (45) days
after such statement is received by GDT. Notwithstanding the foregoing,
each of the Borrowers acknowledges that the Agent may charge the BABC
Account with all customary fees, charges and expenses (including any
increases in such fees and charges which occur after the Effective Date)
owing to or incurred by the Agent in connection with the administration of
this Agreement, the Loans, Letters of Credit, Banker's Acceptances or the
Loan Documents and that the Borrowers shall not object to the monthly
statements on the basis of the amount, frequency or timing of such charges.
In the event a timely written notice of objections is given by the
Borrowers, only the items to which exception is expressly made will be
considered to be disputed by the Borrowers.
7. COLLATERAL.
7.1 GRANT OF SECURITY INTEREST. (a) To secure the prompt,
complete payment and performance of all Obligations, each of the Borrowers
hereby grants to the Agent, and reaffirms its grant under the Original
Agreement to the Agent of, for the ratable benefit of the Secured
Creditors, a continuing security interest in, lien on, and to the extent
necessary to grant a security interest or lien against, a collateral
assignment of, and right of set off against all of the following property
of such Borrower, whether now owned or existing or hereafter acquired or
arising and regardless of where located:
(i) all Accounts, contract rights, chattel paper, instru-
ments, notes, documents, and documents of title;
(ii) General Intangibles;
(iii) Inventory;
(iv) Equipment;
(v) all moneys, securities and other property of any kind
of such Borrower in the possession or under the control of any
Lender, the Agent or a bailee or affiliate of any Lender or the
Agent;
(vi) all of such Borrower's deposit accounts, credits, and
balances with and other claims against any Lender, the Agent or
any of their respective affiliates or any other financial
institution with which such Borrower maintains deposits;
EX-10.26-59
(vii) all books, records and other property relating to or
referring to any of the foregoing, including, without limitation,
all books, records, ledger cards, data processing records, com-
puter software and other property and general intangibles at any
time evidencing or relating to any of the foregoing; and
(viii) all accessions to, substitutions for and replacements,
products and proceeds of any of the foregoing, including, but not
limited to, proceeds of any insurance policies, claims against
third parties, and condemnation or requisition payments with
respect to all or any of the foregoing.
All of the foregoing, together with all other Property in which the Agent,
for the ratable benefit of the Secured Creditors, may at any time be
granted a Lien, is herein collectively referred to as the "Collateral";
PROVIDED, HOWEVER, that the grant of security interest, lien and assignment
to the Agent for the ratable benefit of the Secured Creditors does not and
shall not include: (i) a security interest in any property described on
SCHEDULE 7.1(a) (all such property being hereinafter referred to
collectively as the "Excluded Property") and (ii) any and all rights,
interests, claims and other intangible property of GDT under that certain
Sale, Installation and Technical Assistance Agreement among GDT, GDTI and
Graaf KG, dated November 14, 1983.
(b) As additional security for the Obligations, GDT (i) pursuant
to the Original Agreement executed and delivered to SPBC, as Agent under
the Original Agreement, the Mortgages pursuant to which GDT granted to the
Agent, for the ratable benefit of the Secured Creditors, continuing and
perfected mortgage liens on the Real Estate described in Part I of SCHEDULE
1.1-E, (ii) shall, on or prior to the Initial Term Funding Date or, in the
event that the Agent or any Lender has not received appraisals in form and
substance satisfactory to it with respect to any Real Estate on or before
the Initial Term Funding Date, on or prior to the Real Estate Term Funding
Date (or, in the event that the Real Estate Term Funding Date shall not
occur with respect to any Real Estate, on or prior to May 15, 1995),
execute and deliver to the Agent (x) the Mortgages pursuant to which GDT
shall grant to the Agent, for the ratable benefit of the Secured Creditors,
continuing and perfected mortgage liens on the Real Estate described in
Part II of SCHEDULE 1.1-E and (y) amendments to, and other documents and
instruments in connection with, the Mortgages delivered in connection with
the Original Agreement (collectively, the "Mortgage Amendment Documents"),
as the Agent may, in its sole discretion, deem necessary or proper,
PROVIDED however that in the event that the Real Estate Term Funding Date
shall not occur with respect to any Real Estate, GDT shall not be required
to deliver environmental reports with respect to any such Real Estate and
(iii) shall, promptly at the request of the Agent, execute and deliver to
the Agent (x) a Mortgage with respect to the Real Estate in Terre Haute,
Indiana, PROVIDED, however, THAT in the event that any Person other than
the Lenders provides any financing with respect to the Equipment located on
any such Real Estate, GDT shall not be required to deliver any such
Mortgage, and a Mortgage with respect to the Real Estate described in
SCHEDULE 7.1(b) hereof and (y) such other documents and instruments
(including without limitation a survey and title insurance policy) with
respect to such Real Estate, as the Agent, in its sole discretion may
request.
(c) All of the Obligations are and shall be secured by all of
the Collateral; PROVIDED, HOWEVER, that the Revolving Loans shall not be
secured
EX-10.26-60
by the Mortgages executed with respect to the Real Estate in the States of
Florida, Georgia, Ohio and Alabama.
7.2 PERFECTION AND PROTECTION OF SECURITY INTEREST. Each of the
Borrowers shall, at its expense, perform, or cause to be performed by SPBC
or any other Person, all steps reasonably requested by the Agent at any
time to perfect, maintain, protect, and enforce its Liens in the Collateral
including, without limitation: (a) executing and recording of the Patent
Agreement and Trademark Agreement and executing and filing financing or
continuation statements, and amendments thereof, in form and substance
satisfactory to the Agent; (b) delivering to the Agent the original
certificates of title for Equipment consisting of motor vehicles and trail-
ers with the Agent's security interest properly endorsed thereon, and
taking any action required to have the Agent's security interest noted on
any such certificate of title; (c) delivering to the Agent the originals of
all instruments, documents, and chattel paper, and all other Collateral of
which the Agent determines it should have physical possession in order to
perfect and protect the Agent's security interest therein, duly endorsed or
assigned to the Agent without restriction; (d) delivering to the Agent
warehouse receipts covering any portion of the Collateral located in
warehouses and for which warehouse receipts are issued; (e) placing
notations on the Borrowers' books of account to disclose the Agent's
security interest; (f) delivering to the Agent all letters of credit on
which any Borrower is named beneficiary; (g) executing and delivering the
Borrower Pledge Agreement, accompanied by the stock certificates and stock
powers referred to therein; (h) executing and delivering the Mortgages or
Mortgage Amendment Documents, as the case may be; (i) executing and
delivering the Trademark Agreement and (j) taking such other steps as are
deemed necessary by the Agent to maintain and protect its Liens. To the
extent permitted by applicable law, the Agent may file, without the
signature of any Borrower, one or more financing statements disclosing its
Liens. The Borrowers agree that a carbon, photographic, photostatic, or
other reproduction of this Agreement or of a financing statement is suffi-
cient as a financing statement.
If any Collateral in excess of $500,000 in the aggregate is at
any time in the possession or control of any warehouseman, bailee or any
agents or processors of any Borrower, then such Borrower shall notify the
Lender thereof and shall notify such Person of the Agent's security
interest in such Collateral and, upon the Agent's request, instruct such
Person to hold all such Collateral for the Agent's account subject to the
Agent's instructions. If at any time any Collateral is located on any
premises that are not owned by any Borrower, then the Borrowers shall
obtain, at the request of the Agent, written waivers, in form and substance
satisfactory to the Agent, of all present and future Liens to which the
owner or lessor or any mortgagee of such premises may be entitled to assert
against the Collateral. In the event the Borrower fails to deliver such
written waivers the Agent may establish reasonable reserves based upon
rentals due under the applicable lease and the likelihood that the
Collateral may not be accessible to the Agent.
From time to time, each of the Borrowers shall, upon the Agent's
request, execute and deliver confirmatory written instruments pledging to
the Agent, for the benefit of the Secured Creditors, the Collateral, but
any Borrower's failure to do so shall not affect or limit the Agent's
security interest or the Agent's or any Lender's other rights in and to the
Collateral. So long as this Agreement is in effect and until all
Obligations have been fully satisfied, the Agent's Liens shall continue in
full force and effect in all Collateral.
EX-10.26-61
7.3 LOCATION OF COLLATERAL. Each of the Borrowers represents
and warrants to the Agent and the Lenders that: (a) SCHEDULE 7.3-A is a
correct and complete list of each Borrower's chief executive office, the
location of its books and records, the locations of the Collateral (except
for not more than $500,000 in the aggregate of used Inventory and $500,000
in the aggregate for Collateral used in trade shows and demonstrations),
and the locations of all of its other places of business; and (b)
SCHEDULE 7.3-B correctly identifies any of such facilities and locations
that are not owned by a Borrower and sets forth the names of the owners and
lessors or sublessors of, and, to the best of the Borrowers' knowledge, the
holders of any mortgages on, such facilities and locations. Each of the
Borrowers covenants and agrees that it will not maintain any Collateral at
any location other than those listed on SCHEDULE 7.3-A, (except for not
more than $500,000 in the aggregate for all Borrowers of used Inventory and
$500,000 in the aggregate for all Borrowers for Collateral used in trade
shows and demonstrations) and it will not otherwise change or add to any of
such locations, unless it gives the Agent at least thirty (30) days' prior
written notice thereof and executes any and all financing statements and
other documents that the Agent requests in connection therewith.
7.4 TITLE TO, LIENS ON, AND SALE AND USE OF COLLATERAL. Each
of the Borrowers represents and warrants to the Agent and the Lenders and
agrees with the Agent and the Lenders that: (a) all Collateral is and will
continue to be owned by the Borrowers free and clear of all Liens
whatsoever, except for Permitted Liens; (b) the Agent's Liens in the
Collateral will not be subject to any prior Lien except for Permitted
Liens; (c) each of the Borrowers will use, store, and maintain the
Collateral with all reasonable care and will use the Collateral for lawful
purposes only; (d) upon the Agent's reasonable request, Accounts due from
the United States or any agency or department of the United States shall be
duly assigned to the Agent, for the ratable benefit of the Secured
Creditors, in full compliance with the Federal Assignment of Claims Act (31
U.S.C.A. Section 3727 et seq.); and (e) none of the Borrowers will, without
the Majority Lenders' prior written approval, sell, or dispose of or permit
the sale or disposition of any Collateral, except for sales of Inventory in
the ordinary course of business, and sales of Equipment as permitted by
SECTION 7.10. The inclusion of proceeds in the Collateral shall not be
deemed to constitute any Lender's consent to any sale or other disposition
of the Collateral except as expressly permitted herein.
7.5 APPRAISALS. Whenever a Default or Event of Default exists,
each of the Borrowers shall, at its expense and upon the Agent's request,
provide the Agent with appraisals (or updates thereof) of any or all of the
Collateral from an appraiser, and prepared on a basis, satisfactory to the
Agent.
7.6 ACCESS AND EXAMINATION. The Agent and the Lenders may
during the Borrowers' normal business hours (and at any time when a Default
or Event of Default exists) have access to, examine, audit, make extracts
from and inspect the Borrowers' records, files, and books of account and
the Collateral, and discuss the Borrowers' affairs with the Borrowers'
officers and management. Each of the Borrowers will deliver to the Agent
and the Lenders any instrument necessary for the Agent and the Lenders to
obtain records from any service bureau maintaining records for such
Borrower. The Agent and the Lenders may, at any time when a Default or
Event of Default exists, and at the Borrowers' expense, make copies of all
of the Borrowers' books and records, or require any Borrower to deliver
such copies to the Lenders. The Agent and the Lenders may, without expense
to the Agent or any
EX-10.26-62
Lender, use such of the Borrowers' personnel, supplies, and premises as may
be reasonably necessary for maintaining or enforcing the Agent's Liens.
7.7 COLLATERAL REPORTING. Each of the Borrowers will provide
the Agent with the following documents at the following times in such form
and in such detail as requested by the Agent: (a) on a weekly basis, a
schedule of Accounts created, collected or credited since the last such
schedule, and, at the Agent's reasonable request, copies of invoices and/or
contracts therefor; (b) at the Agent's reasonable request, copies of
customer statements and credit memos, remittance advices and reports, and
copies of deposit slips; (c) upon the Agent's reasonable request, copies of
shipping and delivery documents; (d) monthly inventory reports by category;
(e) monthly agings of accounts payable (excluding any accounts payable on
behalf of GDT's branch system or the Wayne, Nebraska plant); (f) upon the
Agent's reasonable request, copies of purchase orders, invoices and
delivery documents for Inventory and Equipment acquired by such Borrower;
(g) on a weekly basis, an aging of Accounts; (h) such other reports as to
the Collateral as the Lenders shall reasonably request from time to time;
and (i) with the delivery of each of the foregoing, a certificate of the
chief financial officer of each of the Borrowers certifying as to the accu-
racy and completeness in all material respects of the foregoing; PROVIDED,
HOWEVER, that notwithstanding anything to the contrary contained herein,
each of the Borrowers shall provide the reports described in this Section
7.7 on a daily basis at any time upon the Agent's request if, and for so
long as, the Aggregate Availability shall be less than $5,000,000 at such
time. If any of the Borrowers' records or reports of the Collateral are
prepared by an accounting service or other agent, each of the Borrowers
hereby authorizes such service or agent to deliver such records, reports,
and related documents to the Agent and the Lenders. GDT will upon the
Agent's request also provide to the Agent the reports required by any Floor
Plan Financing Agreements.
7.8 COLLECTIONS AND CONCENTRATION ACCOUNT ARRANGEMENTS. (a)
The Agent reserves the right to, or to have Agent's designee, at any time
after the occurrence of an Event of Default, notify Account Debtors that
the Accounts have been assigned to the Agent and of the Agent's security
interest therein, and to collect Accounts directly. Any collection costs
and expenses incurred by the Agent shall be Obligations hereunder secured
by the Collateral, shall bear interest at the rates provided herein for
Reference Rate Loans and shall be charged to the Loan Account as Revolving
Loans. At the Agent's request after the occurrence of an Event of Default,
each of the Borrowers shall execute and deliver to the Agent such documents
as the Agent shall require to establish lock boxes and to grant the Agent
access to any post office box in which collections of Accounts are
received.
(b) All collections of Accounts of the Borrowers and other
proceeds of Collateral of the Borrowers shall be deposited into a Con-
centration Account, either directly or following the deposit thereof in a
Depositary Account, under arrangements established by the Borrowers and
acceptable to the Agent. If sales of Inventory are made for cash, the
Borrowers shall immediately deposit into a Depositary Account or
Concentration Account the identical checks, cash, or other forms of payment
which the Borrowers received. Each Borrower shall direct each of the banks
at which Depositary Accounts are established to transfer, by same-day
depositary transfer credit, ACH Transfer or Fed Wire transfer, on a daily
basis all amounts on deposit in such Depositary Account to a Concentration
Account. The Concentration Accounts shall be maintained on terms
acceptable to the Agent, subject to agreements ("Restricted Account
Agreements") among such Borrower, the Agent and the relevant financial
institution, to the
EX-10.26-63
effect that such financial institution shall remit all amounts deposited in
the applicable Concentration Account to the Agent or as the Agent may
direct. All funds in the Concentration Account shall be subject to the
sole dominion and control of the Agent. On or before the Effective Date,
the Borrower shall deliver to the Agent a Restricted Account Agreement
relating to all Concentration Accounts then in existence and with respect
to which no Restricted Account Agreement had previously been delivered.
The Borrowers jointly and severally agree to indemnify each Lender and the
Agent against, and reimburse each on demand for, all costs (without
duplication) incurred by the Agent or any Lender in connection with any
Restricted Account Agreement. Notwithstanding the termination of this
Agreement, until all of the Obligations shall have been fully paid and
satisfied, the Borrower shall continue to deposit, or cause to be depos-
ited, into a Concentration Account all collections of Accounts and other
proceeds of Collateral. The Agent shall apply, or cause to be applied, all
amounts on deposit in the Concentration Accounts to the repayment or
prepayment of any Obligations (other than Eurodollar Rate Loans) and, in
the event GDT on behalf of any Borrower fails to reborrow any excess
amount, shall cause such excess to be held on behalf of the Agent in a
Concentration Account or other cash collateral account on terms and
conditions acceptable to the Agent.
(c) In the event the Borrowers repay all of the Obligations and
have complied with SECTION 3A.10, upon termination of this Agreement or
after acceleration by the Agent, any amounts in excess of the amount
necessary to pay the Obligations in full and comply with SECTION 3A.10
shall be returned to the Borrowers one (1) Business Day after the Agent's
unconditional and final collection of such funds.
7.9 ACCOUNTS; INVENTORY. Each of the Borrowers represents and
warrants to the Agent and the Lenders and agrees with the Agent and the
Lenders with respect to each of the Accounts scheduled pursuant to SECTION
7.7 that (i) it is genuine and in all respects what it purports to be, and
not evidenced by a judgment; (ii) it represents a bona fide transaction
completed in accordance with the terms and provisions contained in the
documents maintained by the Borrowers and any documents delivered to the
Agent with respect thereto; (iii) except as disclosed on the schedule of
Accounts delivered to the Agent pursuant to SECTION 7.7, there are no
setoffs, counterclaims or disputes existing or asserted with respect
thereto and the Borrowers have not made any agreement with any Account
Debtor for any deduction therefrom except a discount or allowance made in
the ordinary course of the Borrowers' business as conducted on the
Effective Date; (iv) except as disclosed on the schedule of Accounts
delivered to the Agent pursuant to SECTION 7.7, there are no facts, events
or occurrences which in any way impair the validity or enforcement thereof
or tend to reduce the amount payable thereunder; (v) the services furnished
and/or goods sold giving rise thereto are not subject to any Lien other
than a lien in favor of the Agent.
Each of the Borrowers represents and warrants to the Agent and
the Lenders and agrees with the Agent and the Lenders that all of the
Inventory is and will be held for sale or lease, or to be furnished in
connection with the rendition of services, in the ordinary course of such
Borrower's business, and is and will be fit for such purposes. Each of the
Borrowers will keep the Inventory in good and marketable condition, at its
own expense. None of the Borrowers will, without prior written notice to
the Agent, acquire or accept any Inventory on consignment or approval. The
Borrowers agree that all Inventory will be produced in accordance with the
Federal Fair Labor Standards Act of 1938, as amended, and all rules,
regulations, and
EX-10.26-64
orders thereunder. Each Borrower will maintain a perpetual inventory
reporting system at all times and will report finished goods to the Agent
and each Lender on a monthly physical basis. Each Borrower will maintain
inventory monitoring systems in accordance with its customary business
practice on the Effective Date, including, without limitation, a "constant
cycle count" of raw materials. No Borrower will (i) redate any invoice or
(ii) sell any Inventory on a bill-and-hold (other than Permitted Bill and
Hold Sales), guaranteed sale, sale and return, sale on approval,
consignment, or other repurchase or return basis; PROVIDED, HOWEVER, that
the Borrowers may (a) make sales on consignment the total of which at any
one time shall not exceed $250,000 in the aggregate for all Borrowers, (b)
make sales on a repurchase basis in the ordinary course of their business
as conducted on the Effective Date, and (c) make sales described in SECTION
10.12(c)(i). The Borrowers have informed the Agent and the Lenders, and
the Agent and the Lenders agree and acknowledge, that the Borrowers from
time to time issue manufacturer's statements of origin to their customers
prior to the commencement or completion of their manufacturing process and
that for purposes of determining eligibility of raw materials under this
Agreement the mere issuance of manufacturer's statements of origin shall
not make otherwise Eligible Inventory consisting of raw materials
ineligible. Each Borrower represents and warrants to, and agrees with, the
Agent and Lenders that, except as to those transactions where such Borrower
has issued its manufacturer's statement of origin as described in this
SECTION 7.9 above, at no time shall any of such Borrower's Inventory
consisting of new completed trailers be or become the subject of a
certificate of title or other similar title document issued by any Public
Authority, or of any application therefor.
7.10 EQUIPMENT. Each of the Borrowers represents and warrants
to the Agent and Lenders and agrees with the Agent and the Lenders that all
of the Equipment is and will be used or held for use in such Borrower's
business, and is and will be fit for such purposes. Each of the Borrowers
shall keep and maintain its Equipment in good operating condition and
repair (ordinary wear and tear excepted) and shall make all necessary
replacements thereof. Each of the Borrowers shall promptly inform the
Agent of any additions to or deletions from its Equipment in excess of
$100,000 individually, and $500,000 in the aggregate for all Borrowers in
any Fiscal Year. None of the Borrowers shall permit at any time Equipment
having an aggregate value in excess of $100,000 to become a fixture to real
property or an accession to other personal property, unless the Agent has a
valid, perfected, and first priority Lien in such real or personal
property. None of the Borrowers will, without the Agent's prior written
consent, alter or remove any identifying symbol or number on the Equipment.
None of the Borrowers shall, without the Lenders' prior written consent,
sell, lease as a lessor, or otherwise dispose of any of the Equipment;
PROVIDED, HOWEVER, that the Borrowers may dispose of obsolete or unusable
Equipment having an orderly liquidation value no greater than $100,000
individually, and $500,000 in the aggregate for all Borrowers in any Fiscal
Year, without the Majority Lenders' consent, so long as, (a) if such sale,
transfer or disposition is effected without replacement of such Equipment,
or such Equipment is replaced by Equipment leased by a Borrower or by
Equipment purchased by a Borrower subject to a Lien, then such Borrower
shall deliver the net cash proceeds of any such sale, transfer or
disposition to the Agent, which proceeds shall be applied to the repayment
of the Term Loans as provided under SECTION 5.5, or (b) if such sale,
transfer or disposition is made in connection with the purchase by such
Borrower of comparable Equipment (other than Equipment subject to a Lien),
then such Borrower shall use the proceeds of such sale, transfer or dis-
position to finance the purchase by such Borrower of such comparable
Equipment and shall
EX-10.26-65
deliver to the Agent written evidence of the use of the proceeds for such
purchase. All replacement Equipment purchased by such Borrower shall be
free and clear of all Liens, claims and encumbrances, except for Permitted
Liens.
7.11 DOCUMENTS, INSTRUMENTS, AND CHATTEL PAPER. Each of the
Borrowers represents and warrants to the Lender and agrees with the Lender
that (a) all documents, instruments, and chattel paper describing,
evidencing, or constituting Collateral, and all signatures and endorsements
thereon, are and will be complete, valid, and genuine and (b) all goods
evidenced by such documents, instruments, and chattel paper are and will be
owned by a Borrower free and clear of all Liens other than Permitted Liens.
Each of the Borrowers warrants the value, quantities, sound condition,
grades and qualities of the goods described in such documents, instruments,
and chattel paper.
7.12 RIGHT TO PERFORM OR CURE. The Agent may, in its reasonable
discretion and at any time, for any Borrower's account and at the
Borrowers' expense, pay any amount or do any act required of any Borrower
hereunder or reasonably requested by the Agent to preserve, protect,
maintain or enforce the Obligations or the Collateral or the Agent's Liens
therein, and which any Borrower fails to pay or do, including, without
limitation, payment of any judgment against any Borrower, any insurance
premium, any warehouse charge, any finishing or processing charge, any
landlord's claim, any other Lien upon or with respect to the Collateral;
PROVIDED, THAT, if no Default or Event of Default exists and the Borrowers
(a) are contesting the tax, charge, assessment, fee or other expense in
good faith and by appropriate proceedings diligently pursued, (b) have
established adequate reserves with respect to such taxes, charges,
assessments, fees or other expenses required by GAAP, if any, and (c) no
Lien, other than a Permitted Lien, results from such non-payment, the
Borrower shall have the right to contest such expenses and the Agent shall
not pay such expenses. Notwithstanding the limitations set forth in the
immediately preceding sentence, the Agent may, in its reasonable discretion
and at any time, for any Borrower's account and at the Borrowers' expense,
pay insurance premiums due and payable relating to insurance policies
covering the Real Estate, the Collateral or both. The Agent may make all
such payments according to any bill, statement or estimate received without
inquiring into the accuracy of such bill, statement or estimate or into the
validity of any tax, assessment, sale, forfeiture, tax lien or title or
claim thereof. All payments that the Agent makes under this SECTION 7.12
and all reasonable out-of-pocket costs and expenses that the Agent pays or
incurs in connection with any action taken by it hereunder shall be
Obligations hereunder secured by the Collateral, shall bear interest at the
rates provided herein for Reference Rate Loans and shall be charged to the
Borrowers' Loan Account as a Revolving Loan. Any payment made or other
action taken by the Agent under this SECTION 7.12 shall be without
prejudice to any right to assert an Event of Default hereunder and to
proceed thereafter as herein provided.
7.13 POWER OF ATTORNEY. Each of the Borrowers hereby appoints
the Agent and the Agent's designees as such Borrower's attorney, with
power: (a) when an Event of Default exists, to endorse such Borrower's
name on any checks, notes, acceptances, money orders, or other forms of
payment or security that come into the Agent's possession; (b) when an
Event of Default exists, to sign such Borrower's name on any invoice, bill
of lading, or other document of title relating to any Collateral, on drafts
against customers, on assignments of Accounts, on notices of assignment,
financing statements and other public records; (c) to notify the post
office authorities, when an
EX-10.26-66
Event of Default exists, to change the address for delivery of such
Borrower's mail to an address designated by the Agent and to receive, open
and dispose of all mail addressed to such Borrower; (d) to send requests
for verification of accounts to customers or Account Debtors; and (e) when
an Event of Default exists, to do all things necessary to carry out this
Agreement. Each of the Borrowers ratifies and approves all acts of such
attorney. Neither the Agent nor the attorney will be liable for any acts
or omissions or for any error of judgment or mistake of fact or law. This
power, being coupled with an interest, is irrevocable until this Agreement
has been terminated and the Obligations have been fully satisfied.
7.14 THE AGENT'S AND THE LENDERS' RIGHTS, DUTIES AND
LIABILITIES. Each of the Borrowers assumes all responsibility and liabil-
ity arising from or relating to the use, sale or other disposition of the
Collateral except for liability resulting from the Agent's, any Lender's or
any of their respective attorneys' gross negligence or willful misconduct.
Neither the Agent nor any Lender and none of their respective officers,
directors, employees, and agents shall be liable or responsible in any way
for the safekeeping of any of the Collateral except to the extent of the
Agent's or any Lender's gross negligence or willful misconduct with respect
thereto, or for any loss or damage thereto, or for any diminution in the
value thereof, or for any act of default of any warehouseman, carrier,
forwarding agency or other person whomsoever, all of which shall be at the
Borrowers' sole risk. The Obligations shall not be affected by any failure
of the Agent to take any steps to perfect its Liens or to collect or
realize upon the Collateral, nor shall loss of or damage to the Collateral
release any Borrower from any of the Obligations. The Agent may (but shall
not be required to), without notice to or consent from any Borrower, sue
upon or otherwise collect, extend the time for payment of, modify or amend
the terms of, compromise or settle for cash, credit, or otherwise upon any
terms, grant other indulgences, extensions, renewals, compositions, or re-
leases, and take or omit to take any other action with respect to the
Collateral, any security therefor, any agreement relating thereto, any
insurance applicable thereto, or any Person liable directly or indirectly
in connection with any of the foregoing, without discharging or otherwise
affecting the liability of any Borrower for the Obligations or under this
Agreement or any other agreement now or hereafter existing between the
Agent and/or any Lender and any of the Borrowers.
8. BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES.
8.1 BOOKS AND RECORDS. Each of the Borrowers shall maintain,
at all times, correct and complete books, records and accounts in which
complete, correct and timely entries are made of its transactions in a
manner necessary to insure that the audited Financial Statements required
to be delivered pursuant to SECTION 8.2(a) shall be prepared in accordance
with GAAP, consistently applied. Each Borrower shall, by means of appro-
priate entries, reflect in such accounts and in all Financial Statements
liabilities and reserves for all taxes and provision for depreciation and
amortization of Property and bad debts, all in accordance with GAAP. Each
Borrower shall maintain at all times books and records pertaining to the
Collateral in such detail, form and scope as the Agent or the Majority
Lenders shall reasonably require, including, but not limited to, records of
(a) all payments received and all credits and extensions granted with re-
spect to the Accounts; (b) the return, rejections, repossession, stoppage
in transit, loss, damage, or destruction of any Inventory; and (c) all
other dealings affecting the Collateral. Each Borrower shall maintain at
all times books and records pertaining to the payment or making of
Distributions and the payment of all
EX-10.26-67
taxes in such detail, form and scope as the Agent or the Majority Lenders
shall reasonably require.
8.2 FINANCIAL INFORMATION. Each of the Borrowers shall
promptly furnish to the Lenders all such financial information as the
Lenders shall reasonably request. Upon the Agents' or Lenders' request to
the Borrowers, the Agent and Lenders shall have the right to contact the
Borrowers' auditors and accountants, regarding (i) the audit report
delivered to the Lenders under SECTION 8.2(a), and (ii) with respect to
such audit report, the methodology used in preparing the audit report. The
Borrowers agree not to unreasonably withhold or delay their consent to the
Agent's or the Lenders' request to contact the Borrowers' auditors and
accountants; PROVIDED, THAT, nothing contained herein shall be deemed to
obligate the Borrowers to authorize their auditors and accountants to
disclose to the Agent or any Lender information regarding pending or
prospective matters to the extent that an accountants' privilege exists
with respect to such matters and such privilege has not otherwise been
waived by the Borrowers. Without limiting the foregoing, each of the
Borrowers will furnish or cause to be furnished to the Lenders, in such
detail as the Lenders shall request, the following:
(a) ANNUAL. As soon as available, but in any event not
later than one hundred-five (105) days after the close of each
Fiscal Year, (i) consolidated audited balance sheets, and
statements of income and expense, and cash flow statements and
statements of stockholders' investment for GDT and its Subsid-
iaries for such Fiscal Year, and the accompanying notes thereto,
and (ii) consolidating unaudited balance sheets, and statements
of income and expense for GDT and its Subsidiaries for such
Fiscal year, setting forth in each case in comparative form
figures for the previous Fiscal Year, all in reasonable detail,
fairly presenting the financial position and the results of
operations of GDT and its Subsidiaries as at the date thereof and
for the Fiscal Year then ended, and prepared in accordance with
GAAP. Such audited statements shall be examined in accordance
with generally accepted auditing standards by and accompanied by
a report thereon unqualified as to scope of independent certified
public accountants selected by GDT and reasonably satisfactory to
the Agent (it being expressly agreed that any nationally
recognized firm of independent public accountants which was a
former member of what was recognized as the "big eight"
accounting firms is acceptable to the Agent).
(b) MONTHLY. As soon as available, but in any event not
later than thirty (30) days after the end of each month, consol-
idated unaudited balance sheets of GDT and its Subsidiaries as at
the end of such month, and consolidated unaudited statements of
income and expenses and cash flow statements and statements of
stockholders' investment for GDT and its Subsidiaries for such
month and for the period from the beginning of the Fiscal Year to
the end of such month, all in reasonable detail, fairly
presenting the financial position and results of operations of
GDT and its Subsidiaries as at the date thereof and for such
periods, and prepared in accordance with GAAP applied consis-
tently with the audited Financial Statements required to be
delivered pursuant to SECTION 8.2(a). Such statements shall be
certified to be correct by the chief financial or accounting
officer of GDT, subject to normal year-end adjustments. In
addition, such statements shall be accompanied by a written
narrative prepared by GDT's chief financial officer explaining
and reconciling the material
EX-10.26-68
variances, if any, in the performance of the Borrowers for the period
covered by such statements from the financial performance of the
Borrowers for such period projected in the projected financial
statements furnished by the Borrower pursuant to SECTION 8.2(e), which
such written narrative shall be in form and substance satisfactory to
the Agent.
(c) ACCOUNTANT'S CERTIFICATE. With each of the audited
Financial Statements delivered pursuant to SECTION 8.2(a), (i) a
certificate of the independent certified public accountants that
examined such statement to the effect that they have reviewed and
are familiar with this Agreement and that, in examining such
Financial Statements, they did not become aware of any fact or
condition which then constituted a Default or Event of Default,
except for those, if any, described in reasonable detail in such
certificate and (ii) a copy of each communication received by the
Borrowers or any of them from such independent certified public
accountants indicating any weaknesses in the internal control of
the Borrowers or any of them.
(d) OFFICER'S CERTIFICATE. With each of the annual audited
and monthly unaudited Financial Statements delivered pursuant to
SECTIONS 8.2(a) and 8.2(b) except with respect to CLAUSE
(d)(ii)(A) of this SECTION 8.2 which delivery shall be made on a
quarterly basis with the monthly unaudited Financial Statements
delivered pursuant to SECTION 8.2 (b), a certificate of the chief
executive or chief financial officer of GDT or, in the case of
the chief financial officer, his designee (i) setting forth in
reasonable detail the calculations required to establish that the
Borrowers were in compliance with the covenants set forth in
SECTION 10.24 and SECTION 10.25 during the period covered in such
Financial Statements and as at the end thereof, and (ii) stating
that, except as explained in reasonable detail in such cer-
tificate, (A) to the best of such officer's knowledge, all of the
representations and warranties of each of the Borrowers contained
in this Agreement and the other Loan Documents are correct and
complete as at the date of such certificate as if made at such
time, (B) each of the Borrowers is, at the date of such
certificate, in compliance with all of the covenants and agree-
ments in this Agreement and the other Loan Documents, and (C) no
Default or Event of Default then exists or existed during the
period covered by such Financial Statements. If such certificate
discloses that a representation or warranty is not correct or
complete, or that a covenant has not been complied with, or that
a Default or Event of Default existed or exists, such certificate
shall set forth what action the Borrowers have taken or proposes
to take with respect thereto.
(e) PROJECTIONS. No sooner than ninety (90) days and no
less than fifteen (15) days prior to the beginning of each Fiscal
Year, consolidated projected balance sheets, statements of income
and expense, and statements of cash flow for GDT and its
Subsidiaries as at the end of and for each month of such Fiscal
Year and the next succeeding Fiscal Year prepared on an annual
basis.
(f) EXPENDITURES AND CASH FLOW. Within forty-five (45)
days after the end of each fiscal quarter, a report of the
Capital Expenditures of the Borrowers for such quarter itemizing
expenditures in excess of $100,000 and showing the aggregate total
EX-10.26-69
of all Capital Expenditures for such quarter and a statement of cash
flow for the Borrowers for the period from the beginning of the then
current Fiscal Year to the end of such quarter, prepared in accordance
with GAAP applied consistently with the audited Financial Statements
required to be delivered pursuant to SECTION 8.2(a).
(g) OTHER REPORTS. Simultaneously with the filing of such
documents with the SEC, Holdings' Annual Reports on Form 10-K and
Quarterly Reports on Form 10-Q, and promptly after its
preparation, the Borrowers' monthly report delivered to Holdings.
(h) ERISA. Promptly after filing with the IRS, a copy of
each annual report (IRS Form 5500, with attachments) filed with
respect to each Benefit Plan of each of the Borrowers or any
Related Company.
(i) TAX RETURNS. Promptly after filing with the IRS, a
copy of each tax return filed by Holdings and each of the
Borrowers.
(j) ADDITIONAL INFORMATION. Such additional information as
the Lenders may from time to time reasonably request regarding
the financial and business affairs of GDT or any of Subsidiaries,
including, without limitation, projections of future operations
on a consolidated basis.
8.3 NOTICES TO THE AGENT. Each of the Borrowers shall notify
the Agent in writing of the following matters and deliver any information
or notices described therein at the following times:
(a) Immediately after becoming aware thereof, any Default
or Event of Default.
(b) Immediately after becoming aware thereof, the assertion
by the holder of any Debt in an outstanding principal amount in
excess of $250,000 that a default exists with respect thereto or
that the applicable Borrower is not in compliance with the terms
thereof, or the threat or commencement by such holder of any
enforcement action because of such asserted default or non-
compliance.
(c) Immediately after becoming aware thereof, any material
adverse change in any Borrower's or Guarantor's property,
business, operations, or condition (financial or otherwise).
(d) Immediately after becoming aware thereof, any pending
or threatened action, suit, proceeding, or counterclaim by any
Person, or any pending or threatened investigation by a Public
Authority, which could reasonably be expected to have a Material
Adverse Effect.
(e) Immediately after becoming aware thereof, any pending
or threatened strike, work stoppage, material unfair labor
practice claim, or other material labor dispute affecting any
Borrower.
(f) Immediately after becoming aware thereof, any violation
of any law, statute, regulation, or ordinance of Public Authority
applicable to GDT or any of its Subsidiaries or their respective
EX-10.26-70
properties which could reasonably be expected to have a Material
Adverse Effect.
(g) Immediately after becoming aware thereof, any material
violation by any Borrower or Guarantor of any Environmental Law
or, immediately upon its receipt thereof, any notice that any
Borrower or Guarantor receives asserting that any Borrower or
Guarantor is or may be (i) liable to any Person in an amount in
excess of $100,000 as a result of the Release or threatened
Release of any Contaminant into the environment; or (ii) subject
to investigation by a Public Authority evaluating whether any
Remedial Action is needed to respond to the Release or threatened
Release of any Contaminant into the environment which could
reasonably be expected to result in liability to the Borrowers or
any of them in excess of $100,000; or (iii) subject to any
judicial or administrative proceeding alleging a material viola-
tion of any Environmental Law which could reasonably be expected
to result in liability to the Borrowers or any of them in excess
of $100,000; or (iv) subject to any new or proposed changes to
any Environmental Law which could reasonably be expected to
result in liability to the Borrowers or any of them in excess of
$100,000 or have a Material Adverse Effect; or (v) in violation
in any material respect of any Environmental Law; or (vi) that
its compliance with any Environmental Law, the noncompliance with
which could reasonably be expected to result in liability to the
Borrowers or any of them in excess of $100,000, is being investi-
gated by a Public Authority.
(h) Any change in any Borrower's or Guarantor's name, state
of incorporation, or form of organization, at least thirty (30)
days prior thereto.
(i) Any Termination Event with respect to a Plan within ten
(10) days after any Borrower or any Related Company knows or has
reason to know thereof, and, promptly after filing thereof, any
materials required to be filed with the PBGC with respect
thereto; immediately after the receipt by any Borrower or any
Related Company of any notice concerning the imposition of any
withdrawal liability under Title IV of ERISA with respect to a
Multiemployer Plan, a notification of such imposition of
withdrawal liability; within ten (10) days after any Borrower or
any Related Company fails to make a required installment or any
other required payment under Section 412 of the Code of a
material amount on or before the due date for such installment or
payment or any such failure that could result in the imposition
of a lien under Section 412(n) of the Code, a notification of
such failure; the establishment of any Benefit Plan or Plan
providing welfare benefits to terminated employees not required
by Section 601 of ERISA not existing at the Effective Date, or
any material increase in the benefits of any existing Plan or the
commencement of contributions by any Borrower to any
Multiemployer Plan to which such Borrower was not contributing at
the Effective Date, within forty-five (45) days after the end of
the fiscal quarter in which such event occurs; within
fifteen (15) days after any Borrower or a Related Company knows
or has reason to know (A) a Multiemployer Plan has been
terminated, (B) the administration or plan sponsor of a
Multiemployer Plan intends to terminate a Multiemployer Plan,
(C) the PBGC has instituted or will institute proceedings under
Section 4042 of ERISA to terminate a Multiemployer Plan or (D)
any Benefit Plan is
EX-10.26-71
substantially likely to be terminated; within thirty (30) days after
any Borrower or a Related Company knows or has reason to know that a
prohibited transaction (defined in Section 406 of ERISA and Sec-
tion 4975 of the Code) has occurred that could result in the
imposition of a material penalty or tax under Section 4975 of the Code
or Section 502(i) of ERISA; immediately after filing with the IRS a
funding waiver request for any Plan, in each case accompanied by a
copy of such request and, subsequent thereto, copies of all communica-
tions received by any Borrower or a Related Company with respect to
such request; or immediately after becoming aware thereof, any other
event or condition regarding a Plan or any Borrower's or a Related
Company's compliance with ERISA or the employee benefit provisions of
the Code which could reasonably be expected to result in a lien upon
any property of any Borrower or any Related Company or to have a
Material Adverse Effect.
(j) If an Event of Default has occurred and is continuing
or would result therefrom, any proposed payment or declaration of
Dividends, at least three (3) days prior thereto.
Each notice given under this SECTION 8.3 shall describe the subject matter
thereof in reasonable detail, and shall set forth the action that the
applicable Borrower, Guarantor or Related Company has taken or proposes to
take with respect thereto. For purposes of this Section, each of the
Borrowers and any Related Company shall be deemed to know all facts known
by the administrator of any Plan of which any Borrower or any Related
Company is the plan sponsor.
9. GENERAL WARRANTIES AND REPRESENTATIONS.
Each of the Borrowers warrants and represents to the Lenders and
the Agent that:
9.1 AUTHORIZATION, VALIDITY, AND ENFORCEABILITY OF THIS
AGREEMENT AND THE LOAN DOCUMENTS. Each of the Borrowers had, in connection
with the Loan Documents executed and delivered, and the security interests
granted, pursuant to the Original Agreement, and has the corporate power
and authority to execute, deliver and perform this Agreement and the other
Loan Documents, to incur the Obligations, and to grant to the Agent
(whether SPBC as initial Agent under the Original Agreement, BankAmerica as
successor Agent under the Original Agreement or BankAmerica as Agent under
this Amended and Restated Agreement), for the ratable benefit of the
Secured Creditors, Liens upon, and security interests in, the Collateral.
Each of the Borrowers had, in connection with the Loan Documents executed
and delivered, and the security interests granted, pursuant to the Original
Agreement, and has taken all necessary corporate action (including, without
limitation, obtaining approval of its stockholders, if necessary) to
authorize its execution, delivery, and performance of this Agreement and
the other Loan Documents. No consent, approval, or authorization of, or
declaration or filing with, any Public Authority, and no consent of any
other Person was, in connection with Loan Documents executed and delivered
pursuant to the Original Agreement, or is required in connection with any
Borrower's execution, delivery, and performance of this Agreement and the
other Loan Documents, except for those already duly obtained. Each of this
Agreement and the other Loan Documents has been duly executed and delivered
by each of the Borrowers (other than the Term Notes and Mortgage Amendments
as to which this representation shall apply on and after the applicable
Term Funding Date), and constitutes the legal, valid and binding obligation
of each of the Borrowers parties thereto, enforceable against them in
accordance with its terms. The Borrowers'
EX-10.26-72
execution, delivery, and performance of this Agreement and the other Loan
Documents did not, in connection with the Loan Documents executed and
delivered pursuant to the Original Agreement, do not and will not conflict
with, or constitute a violation or breach of, or constitute a default
under, or result in the creation or imposition of any Lien upon the
property of any Borrower or any of its or their respective Subsidiaries by
reason of the terms of (a) any contract, mortgage, Lien, lease, agreement,
indenture, or instrument to which such Borrower or such Subsidiary is a
party or which is binding upon it, (b) any Requirements of Law applicable
to such Borrower or such Subsidiary, or (c) the Certificate or Articles of
Incorporation or By-laws of such Borrower or such Subsidiary.
9.2 VALIDITY AND PRIORITY OF SECURITY INTEREST. The provisions
of this Agreement, the Mortgages and the other Loan Documents create legal
and valid Liens on all the Collateral in the Agent's favor for the ratable
benefit of the Secured Creditors, and such Liens constitute perfected and
continuing Liens on all the Collateral, having priority over all other
Liens on the Collateral except those Permitted Liens specifically
identified on SCHEDULE 1.1-D, securing all the Obligations, and enforceable
against each of the Borrowers and all third parties.
9.3 ORGANIZATION AND QUALIFICATION. Each of the Borrowers
(a) is duly incorporated and organized and validly existing in good stand-
ing under the laws of the state specified on SCHEDULE 9.3-A, (b) is
qualified to do business as a foreign corporation and is in good standing
in the jurisdictions set forth opposite its name on SCHEDULE 9.3-B, which
are the only jurisdictions in which qualification is necessary in order for
the applicable Borrower to own or lease its property and conduct its
business, and (c) has all requisite power and authority to conduct its
business and to own its property.
9.4 CORPORATE NAME; PRIOR TRANSACTIONS; BUSINESS CONDUCTED. No
Borrower has, during the past five (5) years, been known by or used any
other corporate or fictitious name, or been a party to any merger or
consolidation, or acquired all or substantially all of the assets of any
Person, or acquired any of its property outside of the ordinary course of
business, except as set forth on SCHEDULE 9.4. The Borrowers are in the
business of manufacturing, selling and leasing trailers, selling parts for
trailers and servicing trailers.
9.5 SUBSIDIARIES AND AFFILIATES. SCHEDULE 9.5 is a correct and
complete list of the name and relationship to each of the Borrowers of each
of the Borrowers' Subsidiaries and other Affiliates. Each Subsidiary is
(a) duly incorporated and organized and validly existing in good standing
under the laws of its state of incorporation set forth on SCHEDULE 9.5-A,
and (b) qualified to do business as a foreign corporation and in good
standing in the jurisdictions set forth opposite its name on SCHEDULE 9.5-
B, which are the only states in which such qualification is necessary in
order for it to own or lease its property and conduct its business.
9.6 FINANCIAL STATEMENTS AND PROJECTIONS. (a) The Borrowers
have delivered to the Agent (i) audited consolidated balance sheets of GDT
and its Subsidiaries as of December 31, 1993, and the related consolidated
statements of operations and retained earnings and cash flows for the years
then ended, together with the notes thereto and (ii) unaudited consolidated
balance sheets of GDT and its Subsidiaries as at December 31, 1994
(collectively, the "Financial Statements"). True and complete copies of
the Financial Statements are attached hereto as SCHEDULE 1.1-A. As soon as
EX-10.26-73
possible, but in any event no later than April 15, 1995, the Borrowers
shall deliver to the Agent the audited consolidated balance sheets of GDT
and its Subsidiaries as of December 31, 1994. The Financial Statements
have been prepared in accordance with GAAP (except as noted thereon)
consistently applied throughout the period involved, and fairly present the
consolidated financial position, results of operations, retained earnings
and cash flows of GDT and its Subsidiaries as at each of the dates and for
each of the periods covered thereby.
(b) The Latest Projections, attached hereto as SCHEDULE 1.1-C,
represent each of the Borrowers' best estimate of the Borrowers' future
financial performance for the periods set forth therein. The Latest Pro-
jections have been prepared on the basis of the assumptions set forth
therein, which the Borrowers believe are reasonable in light of current and
reasonably foreseeable business conditions.
(c) The pro forma consolidated balance sheet of GDT and its
Subsidiaries as at December 31, 1994, attached hereto as SCHEDULE 1.1-B,
fairly presents the financial condition of GDT and its Subsidiaries as at
such date as if the transactions contemplated by this Agreement (including
without limitation any transfer of funds by any Borrower to Holdings to be
made, in whole or in part, from proceeds of any Loan within thirty (30)
days after the Initial Term Funding Date) had occurred on such date and
each of the Effective Date and the Initial Term Funding Date had been such
date, and has been prepared in accordance with GAAP.
9.7 CAPITALIZATION. The authorized and outstanding capital
stock of GDT and each of its Subsidiaries is described on SCHEDULE 9.7-A,
and all such stock of GDT and each of its Subsidiaries is validly issued
and outstanding, fully paid and non-assessable, and is owned beneficially
and of record by the Persons set forth on SCHEDULE 9.7-B.
9.8 SOLVENCY. (a) Each of the Borrowers is Solvent prior to
and after giving effect to the transactions contemplated by this Agreement
to occur on the Effective Date, the extension of the Original Term Loans
and making of the Revolving Loans to be made and issuance of the Letters of
Credit and Banker's Acceptances to be issued on the Effective Date and the
Distributions, if any, to be made on the Effective Date or contemplated on
the Effective Date to be made within thirty (30) days thereafter from
proceeds of Revolving Loans.
(b) Each of the Borrowers will be Solvent prior to and after
giving effect to the transactions contemplated by this Agreement and the
making of the Term Loans and Revolving Loans to be made and the issuance of
the Letters of Credit and Banker's Acceptances to be issued on each Term
Funding Date and the Distributions, if any, to be made on each Term Funding
Date or contemplated on such Term Funding Date to be made within thirty
(30) days thereafter from proceeds of Revolving Loans or Term Loans.
9.9 DEBT. After giving effect to the making of the Revolving
Loans to be made and the issuance of the Letters of Credit and Banker's
Acceptances to be issued on the Effective Date and the Term Loans to be
made on each Term Funding Date, the Borrowers have no Debt, except (a) the
Obligations, (b) Debt set forth on the pro forma consolidated balance sheet
of each of the Borrowers, attached hereto as SCHEDULE 1.1-B, or the notes
thereto and (c) to the extent not included within SECTION 9.9(b), Debt set
forth on the audited consolidated balance sheets or the accompanying notes
EX-10.26-74
thereto of GDT and its Subsidiaries as of December 31, 1993, attached
hereto as SCHEDULE 1.1-A.
9.10 TITLE TO PROPERTY. With respect to those locations listed
as Premises owned by such Borrower on SCHEDULE 1.1-E such Borrower has good
and marketable title in fee simple to such Premises except as may be set
forth on the Title Reports, and such Borrower and each of its Subsidiaries
has good, indefeasible, and merchantable title to all of its other Property
(including, without limitation, the assets reflected on the December 31,
1993 Financial Statements delivered to the Lenders, except as disposed of
in the ordinary course of business since the date thereof or as otherwise
expressly permitted hereby), free of all Liens except Permitted Liens.
9.11 REAL PROPERTY; LEASES. SCHEDULE 7.3-B sets forth a correct
and complete list of all real property owned by such Borrower, all leases
and subleases of real or personal property by such Borrower as lessee or
sublessee, and all leases and subleases of real or personal property by
such Borrower as lessor, lessee, sublessor or sublessee. Each of such
leases and subleases is valid and enforceable in accordance with its terms
and is in full force and effect, and no default by any Borrower and, to the
best of the Borrowers' knowledge, any other party to any such lease or
sublease which is material to the business or operations of such Borrower
exists.
9.12 PROPRIETARY RIGHTS. SCHEDULE 1.1-F sets forth a correct
and complete list of all of the Proprietary Rights. None of the
Proprietary Rights is subject to any licensing agreement or similar
arrangement except as set forth on SCHEDULE 1.1-F or as entered into in the
sale or distribution of the Borrower's Inventory in the ordinary course of
business. To the best of the Borrowers' knowledge, none of the Proprietary
Rights infringes on or conflicts with any other Person's property, and no
other Person's property infringes on or conflicts with the Proprietary
Rights. The Proprietary Rights described on SCHEDULE 1.1-F constitute all
of the property of such type necessary to the current and anticipated
future conduct of the Borrowers' business.
9.13 TRADE NAMES. All trade names or styles under which any
Borrower will sell Inventory or Equipment or create Accounts, or to which
instruments in payment of Accounts may be made payable, are listed on
SCHEDULE 1.1-F.
9.14 LITIGATION. Except as set forth on SCHEDULE 9.14, there is
no pending or (to the best of the Borrowers' knowledge) threatened, action,
suit, proceeding, or counterclaim by any Person, or investigation by any
Public Authority, or (to the best of the Borrowers' knowledge) any basis
for any of the foregoing, which could reasonably be expected to have a
Material Adverse Effect.
9.15 RESTRICTIVE AGREEMENTS. No Borrower was, in connection
with any Loan Document executed and delivered pursuant to the Original
Agreement, or is a party to any contract or agreement, and no Borrower was,
in connection with any Loan Document executed and delivered pursuant to the
Original Agreement, or is subject to any charter or other corporate
restriction, which affects any of the Borrowers' ability to execute,
deliver, and perform the Loan Documents and repay the Obligations or which
could reasonably be expected to have a Material Adverse Effect.
9.16 LABOR DISPUTES. Except as set forth on SCHEDULE 9.16,
(a) there is no collective bargaining agreement or other labor contract
EX-10.26-75
covering employees of GDT or any of its Subsidiaries, (b) no such
collective bargaining agreement or other labor contract is scheduled to
expire during the term of this Agreement, (c) no union or other labor
organization is seeking to organize, or to be recognized as, a collective
bargaining unit of employees of GDT or any of its Subsidiaries or for any
similar purpose, and (d) there is no pending or (to the best of any
Borrower's knowledge) threatened, strike, work stoppage, material unfair
labor practice claim, or other material labor dispute against or affecting
GDT or any of its Subsidiaries or their respective employees.
9.17 ENVIRONMENTAL, HEALTH AND SAFETY LAWS. Except with
respect to matters which could not reasonably be expected to (i) have in
the aggregate a Material Adverse Effect or (ii) result in aggregate
liability to the Borrowers or any of them in excess of $500,000:
(a) The operations of each of the Borrowers comply in all
material respects with all applicable environmental, health and safety
Requirements of Law;
(b) Each Borrower has obtained all environmental, health and
safety permits necessary for its operation, and all such permits are in
good standing and each Borrower is in compliance in all material respects
with all terms and conditions of such permits;
(c) No Borrower nor any of its present Property or operations,
nor its past Property or operations, is subject to any order from or
agreement with any Public Authority or private party respecting (i) any
environmental, health or safety Requirements of Law, (ii) any Remedial
Action or (iii) any liabilities and costs arising from the Release or
threatened Release of a Contaminant into the environment;
(d) None of the operations of the Borrowers is subject to any
judicial or administrative proceeding alleging a violation of any
environmental, health or safety Requirement of Law;
(e) To the best of the Borrowers knowledge based upon
reasonable inquiry, none of the present nor past operations of any of the
Borrowers is the subject of any investigation by any Public Authority
evaluating whether any Remedial Action is needed to respond to a Release or
threatened Release of a Contaminant into the environment;
(f) None of the Borrowers has filed any notice under any
Requirement of Law indicating past or present treatment, storage or
disposal of a hazardous waste, as that term is defined under 40 CFR Part
261 or any state equivalent;
(g) None of the Borrowers has filed any notice under any
applicable Requirement of Law reporting a Release of a Contaminant into the
environment;
(h) During the course of the Borrowers' operations on the
Property, there may have been (i) generation, treatment, recycling, storage
or disposal of hazardous waste, as that term is defined under 40 CFR Part
261 or any state equivalent, (ii) use of underground storage tanks or
surface impoundments, (iii) periodic use of asbestos containing materials
or (iv) periodic use of polychlorinated biphenyls (PCB) used in hydraulic
oils, electrical transformers or other equipment; however, to the best of
the Borrowers' knowledge based upon reasonable inquiry, all of the above
listed
EX-10.26-76
uses have been undertaken in accordance with all current standards and
practices governing such uses and in such a manner that such uses do not
violate any applicable Requirements of Law.
(i) None of the Borrowers has entered into any negotiations or
agreements with any Person (including, without limitation, the prior owner
of such Borrower's property) relating to any Remedial Action or
environmental related claim;
(j) None of the Borrowers has received any notice or claim to
the effect that it is or may be liable to any Person as a result of the
Release or threatened Release of a Contaminant into the environment;
(k) None of the Borrowers has any material contingent liability
in connection with any Release or threatened Release of any Contaminants
into the environment; and
(l) Having made due inquiry, each Borrower represents that no
Environmental Lien has attached to the Property of any of the Borrowers.
(m) The presence and condition of all asbestos-containing
material which is on or part of the Property (excluding any raw materials
used in the manufacture of products or products themselves) do not violate
in any material respect any currently applicable or proposed Requirement of
Law.
(n) To the best of the Borrowers' knowledge based upon
reasonable inquiry, none of the Borrowers manufactures, distributes or
sells, or ever has manufactured, distributed or sold, products which
contain asbestos-containing material, with the exception of brake linings
which may have been incorporated into the Borrowers' products.
9.18 NO VIOLATION OF LAW. None of the Borrowers is in violation
of any Requirement of Law applicable to it which violation could reasonably
be expected to have a Material Adverse Effect.
9.19 NO DEFAULT. None of the Borrowers is in default with
respect to any note, indenture, loan agreement, mortgage, lease, deed, or
other agreement to which such Borrower is a party or by which it is bound,
which default could reasonably be expected to have a Material Adverse
Effect.
9.20 ERISA. (a) Neither any Borrower nor any Related Company
maintains or contributes to any Benefit Plan other than those listed on
SCHEDULE 9.20-A.
(b) No Benefit or Multiemployer Plan has been terminated or par-
tially terminated or is insolvent or in reorganization, nor have any
proceedings been instituted to terminate or reorganize any Benefit or
Multiemployer Plan.
(c) Neither any Borrower nor any Related Company has withdrawn
from any Benefit Plan, nor has a condition occurred which if continued
would result in a withdrawal.
(d) Neither any Borrower nor any Related Company has incurred
any withdrawal liability, including contingent withdrawal liability, to any
Benefit Plan pursuant to Title IV of ERISA.
EX-10.26-77
(e) Neither any Borrower nor any Related Company has incurred
any liability to the PBGC other than for required insurance premiums which
have been paid when due.
(f) No Reportable Event (other than a Reportable Event not
subject to the provision for 30-day notice to PBGC under the regulations
issued under Section 4043 of ERISA) has occurred with respect to a Plan.
(g) No Benefit Plan has an "accumulated funding deficiency"
(whether or not waived) as defined in Section 302 of ERISA or in
Section 412 of the Code.
(h) Each Plan is in substantial compliance with (i) ERISA and
(ii) the provisions of the Code, compliance with which is necessary for any
intended favorable tax treatment, and neither any Borrower nor any Related
Company has received any notice asserting that a Plan is not in compliance
with ERISA or such provisions of the Code.
(i) Each Plan which is intended to be a qualified Plan has been
determined by the IRS to be qualified under Section 401(a) of the Code as
currently in effect or will be submitted to the IRS for such determination
prior to the end of the remedial amendment period under Section 401(b) of
the Code and the regulations promulgated thereunder and neither any Borrow-
er nor any Related Company knows or has reason to know why each such Plan
should not continue to be so qualified, and each trust related to such Plan
has been determined to be exempt from federal income tax under
Section 501(a) of the Code.
(j) Except as provided on SCHEDULE 9.20-J, neither any Borrower
nor any Related Company maintains or contributes to any employer welfare
benefit plan within the meaning of Section 3(1) of ERISA which provides
benefits to employees after termination of employment other than as
required by Section 601 of ERISA.
(k) Schedule B to the most recent annual report filed with the
IRS with respect to each Benefit Plan and furnished to the Lenders is
complete and accurate. Since the date of each such Schedule B, there has
been no adverse change in funding status or financial condition of the
Benefit Plan relating to such Schedule B.
(l) Neither any Borrower nor any Related Company has failed to
make a required installment under subsection (m) of Section 412 of the Code
or any other payment required under Section 412 of the Code on or before
the due date for such installment or other payment.
(m) Neither any Borrower nor any Related Company is required to
provide security to a Benefit Plan under Section 401(a)(29) of the Code due
to a Benefit Plan amendment that results in an increase in current
liability for the plan year.
(n) Neither any Borrower, nor any Related Company, nor any other
"party-in-interest" or "disqualified person" has engaged in a nonexempt
"prohibited transaction," as such terms are defined in Section 4975 of the
Code and Section 406 of ERISA, in connection with any Plan or has taken or
failed to take any action which would constitute or result in a Termination
Event.
EX-10.26-78
(o) Neither any Borrower nor any Related Company has failed to
comply with the health care continuation coverage requirements of Section
4980B of the Code in respect of employees and former employees of such
Borrower or such Related Company and their dependents and beneficiaries
which alone or in the aggregate would subject such Borrower or such Related
Company to any material liability.
(p) Neither any Borrower nor any Related Company has (i) failed
to make a required contribution or payment to a Multiemployer Plan or (ii)
made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA
from a Multiemployer Plan. Except as provided on SCHEDULE 9.20-P, to the
best knowledge of the Borrowers after due inquiry, neither any Borrower nor
any Related Company shall have any obligation to (i) make contributions to
any Multiemployer Plan on or after the Effective Date, or (ii) pay
withdrawal liability to any Multiemployer Plan in an amount in excess of a
"de minimis amount" as such term is defined in Section 4209 of ERISA.
9.21 TAXES. Each of the Borrowers has filed all tax returns and
other reports which it was required by law to file on or prior to the
Effective Date and has paid all taxes, assessments, fees, and other
governmental charges, and penalties and interest, if any, against it or its
property, income, or franchise, that are due and payable as shown on such
return except for such taxes, assessments, fees and other governmental
charges, and penalties and interest which are being contested in good faith
by appropriate proceedings diligently pursued, and for which adequate
reserves are maintained, and no Lien, other than a Permitted Lien, results
from such non-payment.
9.22 INVESTMENT COMPANY ACT. None of the Borrowers is an
"investment company" nor an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (15 U.S.C.
Section 80(a)(l), et seq.). The making of the Loans and other financial
accommodations hereunder by the Lenders, the application of the proceeds
and repayment thereof by the Borrowers and the consummation of the other
transactions contemplated by this Agreement and the Loan Documents do not
violate any provisions of such Act or any rule, regulation or order issued
by the Securities and Exchange Commission (the "SEC") thereunder.
9.23 MARGIN STOCK. None of the Borrowers owns any "margin
stock," as that term is defined in Regulations G, U and X of the Federal
Reserve Board, and the proceeds of the Loans and the other financial
accommodations made pursuant to this Agreement will be used only for the
purposes contemplated hereunder. None of the Loans or the other financial
accommodations hereunder will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock. None of the Borrowers
will take or permit any agent acting on its behalf to take any action which
might cause any transaction, obligation or right created by this Agreement,
or any document or instrument delivered pursuant hereto, to violate any
regulation of the Federal Reserve Board.
9.24 BROKER'S FEES. No broker or finder is entitled to receive
compensation for services rendered with respect to the transactions
described in this Agreement.
9.25 NO MATERIAL ADVERSE CHANGE. No material adverse change has
occurred in the property, business operations, or conditions (financial or
otherwise) of any of GDT or any of its Subsidiaries since December 31,
1993.
EX-10.26-79
9.26 USE OF PROCEEDS. The Borrowers' uses of the proceeds of
the Loans and uses of the Letters of Credit and Banker's Acceptances are,
and will continue to be, legal and proper uses, duly authorized by the
applicable Borrower's Board of Directors; such uses are, and will continue
to be, consistent with all applicable laws and statutes, as in effect from
time to time; and such uses are, and will continue to be, permitted
pursuant to the terms of SECTION 10.30 and the other provisions of this
Agreement.
9.27 DISCLOSURE. Neither this Agreement nor any document or
statement furnished to the Agent or any of the Lenders by or on behalf of
any Borrower hereunder contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
contained herein or therein not materially misleading.
10. AFFIRMATIVE AND NEGATIVE COVENANTS.
Each of the Borrowers covenants that, so long as any of the
Obligations remain outstanding or this Agreement is in effect:
10.1 TAXES AND OTHER OBLIGATIONS. Such Borrower shall, and
shall cause each of its Subsidiaries to (i) file when due, after any
extension, all tax returns and other reports which it is required to file,
(ii) pay, or provide for the payment, when due, of all taxes, fees,
assessments and other governmental charges against it or upon its property,
income and franchises, make all required withholding and other tax
deposits, and establish adequate reserves for the payment of all such
items, and provide to the Lenders, upon request, satisfactory evidence of
its timely compliance with the foregoing and (iii) pay when due all trade
liabilities and claims of materialmen, mechanics, carriers, warehousemen,
landlords and other like Persons, and all other indebtedness owed by it and
perform and discharge in a timely manner all other obligations undertaken
by it; PROVIDED, HOWEVER, that such Borrower and its Subsidiaries need not
pay any tax, fee, assessment, governmental charge, or Debt, or discharge
any other obligation, that any of them is contesting in good faith by
appropriate proceedings diligently pursued, and for which adequate reserves
are maintained, so long as no Lien, other than a Permitted Lien, results
from such non-payment.
The Borrowers shall not, nor shall they permit any of their
Subsidiaries to, file or consent to the filing of any consolidated tax
return with any Person (other than the Borrowers or any of their
Subsidiaries or such other Person as may be reasonably acceptable to the
Lenders); PROVIDED, HOWEVER, so long as the Borrowers and their
Subsidiaries are members of an "affiliated group" (as defined in Section
1504 of the Code) with Holdings (the "Affiliated Group"), for all taxable
years in which the Borrowers are a member of the Affiliated Group and for
which Holdings files consolidated federal income tax returns and
consolidated state income tax returns or state income tax returns based on
combined reporting where such returns are required under or permitted under
applicable state rules and regulations for the Affiliated Group, the
Borrowers may file consolidated tax returns with Holdings and pay to
Holdings, the amount of the consolidated federal and the state income tax
liabilities of the Affiliated Group as set forth below:
(a) DETERMINATION OF FEDERAL INCOME TAX LIABILITY. For each "Year"
(as defined below) or part thereof with respect to which Holdings files a
consolidated federal income tax return and the Borrowers are members of the
Affiliated Group, the Borrowers shall determine their consolidated federal
income tax liability for such Year as if the Borrowers had filed their own
separate consolidated federal income tax return, such determination
EX-10.26-80
to include any benefit resulting from the carry-forward of ordinary losses,
capital losses and tax credits of the Borrowers (regardless of whether such
losses or credits have been utilized by the Affiliated Group to offset
taxable income or taxes of the Affiliated Group) from the current or a
prior year. For purposes of this SECTION 10.1, "Year" shall mean the
taxable year adopted by the Affiliated Group for federal income tax
purposes.
(b) PAYMENT OF THE BORROWERS' TAX LIABILITY TO HOLDINGS. The
Borrowers may pay the lesser of (a) their federal income tax liability
determined under SECTION 10.1(a) (or, until such time as final numbers are
available, estimates thereof) or (b) the amount of federal income tax
expense Holdings must pay in cash as shown on IRS form 1120 (or, until such
time as final numbers are available, estimates thereof), at such times as
shall be requested by Holdings, but not more frequently than quarterly,
PROVIDED, THAT, with respect to the second quarter the Borrowers may pay
two installments in accordance with their past practices. If, as a result
of estimated payments, the Borrowers pay to Holdings or directly to the
taxing authority for a Year an amount in excess of the lesser of (a) the
amount determined under SECTION 10.1(a) plus $100,000 and (b) the amount
permitted to be paid by this SECTION 10.1(b), Holdings has agreed to refund
to the Borrowers the amount of such excess no later than the date upon
which Holdings files the consolidated federal income tax return for the
Affiliated Group. The Borrowers shall deliver such documents as the Agent
shall reasonably require to demonstrate compliance with SECTION 10.1.
(c) STATE OR LOCAL INCOME TAX. For each Year with respect to
which Holdings files one or more state or local income tax returns
requiring the payment of a tax, whether on the basis of a unitary return or
a single return based upon a combined report, and the operations of the
Borrowers are included in such return or returns, the Borrowers' state
income tax liability shall be computed in the manner provided in SECTION
10.1(a) and payment shall be made in the manner provided in SECTION
10.1(b).
(d) ADJUSTMENTS TO THE BORROWERS' FEDERAL AND STATE INCOME TAX
LIABILITY.
(i) In the event that there is an increase or decrease in the
amount determined under SECTIONS 10.1(a) or 10.1(c) for any Year (whether
by amended return, examination by the IRS, carryback or net operating loss
or unused credits, or otherwise), the Borrowers shall, and Holdings has
agreed to, (a) in the case of an increase in the tax payable by the
Borrowers, the Borrowers shall make a payment to Holdings in an amount
equal to the lesser of (1) the amount of such increase or (2) the cash
amount payable by Holdings to the IRS or any state or local taxing
authority as a result of such increase (together with any interest and
penalties imposed by the IRS or any state or local taxing authority), and
(b) in the case of a decrease in the tax payable by the Borrowers, Holdings
has agreed to make a payment to the Borrowers in an amount equal to the
lesser of (1) the amount of such decrease or (2) the cash amount of the
refund received from the IRS or any state or local taxing authority by
Holdings.
(ii) The Agent and a representative of the Borrowers shall have
the right to review any adjustments determined by a taxing authority which
would increase or decrease the amount determined under SECTION 10.1(a) or
10.1(c).
(e) REFUNDS. In the event the calculation under SECTION 10.1(a) or
10.1(c) reflects that the Borrowers would be entitled to a refund for such
EX-10.26-81
Year, Holdings has agreed to pay such amount to the Borrowers promptly but
in any event no later than the date upon which Holdings files the income
tax return for the Affiliated Group.
10.2 CORPORATE EXISTENCE AND GOOD STANDING. Such Borrower
shall, and shall cause each of its Subsidiaries to, maintain its corporate
existence and its qualification and good standing in all jurisdictions
necessary to conduct its business and own its property, and shall obtain
and maintain all material licenses, permits, franchises and governmental
authorizations necessary to conduct its business and own its property.
10.3 COMPLIANCE WITH LAW AND AGREEMENTS. Such Borrower shall,
and shall cause each of its Subsidiaries to, comply with the terms and
provisions of each Requirement of Law applicable to it and each contract,
mortgage, lien, lease, indenture, order, instrument, agreement, or document
to which it is a party or by which it is bound if the failure to do so
could reasonably be expected to have a Material Adverse Effect.
10.4 MAINTENANCE OF PROPERTY. Such Borrower shall, and shall
cause each of its Subsidiaries to, maintain all of its property necessary
and useful in its business in good operating condition and repair, ordinary
wear and tear excepted.
10.5 INSURANCE. Such Borrower shall maintain, and shall cause
each of its Subsidiaries to maintain, with financially sound and reputable
insurers, insurance against loss or damage by fire with extended coverage;
theft, burglary, pilferage and loss in transit; public liability and third
party property damage; larceny, embezzlement or other criminal liability;
business interruption; and such other hazards or of such other types as is
customary for persons engaged in the same or similar business, as the Agent
shall reasonably specify, in amounts, and under policies reasonably accept-
able to the Agent. Without limiting the foregoing, the Borrower shall also
maintain flood insurance, in the event of a designation of the area in
which any Real Property is located as "flood prone" or a "flood risk area,"
as defined by the Flood Disaster Protection Act of 1973, in an amount to be
reasonably determined by the Agent, and shall comply with the additional
requirements of the National Flood Insurance Program as set forth in said
Act.
The Borrowers shall cause the Agent to be named in each such
policy as secured party or mortgagee and loss payee or additional insured,
in a manner acceptable to the Agent. Each policy of insurance shall
contain a clause or endorsement requiring the insurer to give not less than
thirty (30) days' prior written notice to the Agent in the event of
cancellation of the policy for any reason whatsoever and a clause or
endorsement stating that the interest of the Agent shall not be impaired or
invalidated by any act or neglect of any Borrower or the owner of any
premises for purposes more hazardous than are permitted by such policy.
All premiums for such insurance shall be paid by the applicable Borrower or
Subsidiary when due, and certificates of insurance and, if requested,
photocopies of the policies shall be delivered to the Agent. If any
Borrower fails to procure such insurance or to pay the premiums therefor
when due, the Agent may (but shall not be required to) do so from the
proceeds of the Revolving Loans as described in SECTION 5.6(b).
Each of the Borrowers shall promptly notify the Agent of any
loss, damage, or destruction to the Collateral or arising from its use,
whether or not covered by insurance, in excess of $250,000 per occurrence.
The Agent is
EX-10.26-82
hereby authorized to collect all insurance proceeds directly. After
deducting from such proceeds the expenses, if any, incurred by the Agent in
the collection or handling thereof, the Agent shall apply such proceeds to
the reduction of the Obligations, in accordance with SECTION 5.5; PROVIDED,
THAT, the Agent shall, at the Borrowers' election, permit the Borrowers to
use such money, or any part thereof, to replace, repair, restore or rebuild
the Collateral (the "Collateral Restoration") in a diligent and expeditious
manner with materials and workmanship of substantially the same quality as
existed before the loss, damage or destruction if each of the following
conditions are met:
(i) no Default or Event of Default exists under this
Agreement;
(ii) the Borrowers shall have delivered to the Agent
(a) a budget of all costs of the Collateral Restoration and
(b) a schedule for the Collateral Restoration;
(iii) (a) the amount of insurance proceeds is
$7,500,000 or less and (b) the Agent shall have
received evidence reasonably satisfactory to the Agent
that the insurance proceeds are sufficient to complete
the Collateral Restoration.
The insurance proceeds shall be disbursed to the Borrowers from time to
time, but at least monthly, as the Collateral Restoration proceeds upon the
submission to the Agent of proof that the Collateral Restoration is
proceeding in accordance with the requirements hereof. Pending release of
the insurance proceeds to the Borrowers the Agent shall, at its option,
either (i) apply any or all of such insurance proceeds to the payment of
the Revolving Loans and establish a reserve in the amount of such insurance
proceeds or (ii) invest such insurance proceeds for the account of the
Borrowers. If the Agent, in its sole discretion, elects to invest the
insurance proceeds, any commissions, expenses and penalties incurred by the
Agent in connection with any investment and redemption of such insurance
proceeds shall be Obligations hereunder secured by the Collateral, shall
bear interest at the rates provided herein for Reference Rate Loans and
shall be charged to the Loan Account, or, at the Agent's option, shall be
paid out of the proceeds of any interest earned and received by the Agent
from the investment of such insurance proceeds as provided herein or out of
such insurance proceeds. The Agent makes no representation or warranty as
to, and shall not be responsible for, the rate of return earned on any
insurance proceeds. Any interest accruing on such insurance proceeds shall
be held on the terms set forth in this SECTION 10.5.
Notwithstanding the foregoing, in the event of any loss, damage
or destruction to the Collateral of less than $250,000 per occurrence not
to exceed $750,000 in the aggregate in any Fiscal Year then, if no Default
or Event of Default exists under this Agreement, the Agent shall, at the
Borrowers election, permit the Borrowers to use such money or any part
thereof (after deducting from such proceeds the expenses, if any, incurred
by the Agent in the collection or handling thereof) to replace, repair,
restore or rebuild the Collateral in a diligent and expeditious manner with
materials and workmanship of substantially the same quality as existed
before the loss, damage or destruction without the necessity to provide to
the Agent a budget of all costs of the Collateral Restoration or a schedule
for the Collateral Restoration.
EX-10.26-83
10.6 CONDEMNATION. The Borrowers shall, immediately upon
learning of the institution of any proceeding for the condemnation or other
taking of any of their property, having a value in excess of $250,000,
notify the Agent of the pendency of such proceeding, and agree that the
Agent may participate in any such proceeding, and the Borrowers from time
to time will deliver to the Agent all instruments reasonably requested by
the Agent to permit such participation. The Agent is authorized to collect
the proceeds of any condemnation claim or award and apply them to the
reduction of the Term Loans (applying such proceeds to the installments of
the Term Loans as set forth in SECTION 5.5 or to any of the other
Obligations then due); PROVIDED, THAT, if the Agent shall have received
reasonably satisfactory evidence that such claim or award is sufficient to
construct a commercially viable structure for its intended use, the Agent,
shall, at the Borrowers' election, permit the Borrowers to use such claim
or award, or any part thereof, to replace the condemned property in
accordance with the terms specified in SECTION 10.5 for the Borrowers' use
of insurance proceeds; and PROVIDED FURTHER THAT, in the event of any
condemnation claim or award having a value in excess of $250,000, the Agent
shall have received the approval of the Majority Lenders prior to any
application of the proceeds of such claim or award described in this
proviso.
10.7 ENVIRONMENTAL, HEALTH AND SAFETY LAWS. Each of the Bor-
rowers shall, and shall cause each of its Subsidiaries to, conduct its
business in compliance in all material respects with all Environmental Laws
applicable to it, including, without limitation, those relating to the
generation, handling, use, storage, and disposal of hazardous and toxic
wastes and substances. Each Borrower shall, and shall cause each of its
Subsidiaries to, obtain all necessary environmental and health and safety
permits, licenses or other governmental approvals or authorizations
necessary for its operations and maintain such licenses, permits and
approvals in good standing. Each of the Borrowers shall, and shall cause
each of its Subsidiaries to, take prompt and appropriate action to respond
to any noncompliance with Environmental Laws which relates to secondary
containment or which could reasonably be expected to result in liability to
the Borrowers or any of them in excess of $500,000 in the aggregate and
shall regularly report to the Lenders on such response. Each of the
Borrowers shall provide the Agent, immediately upon its receipt thereof,
any notice that any Borrower receives from a Public Authority asserting
that such Borrower is not in compliance with any Environmental Law or that
its compliance is being investigated, which violation or suspected
noncompliance could reasonably be expected to result in liability to
Borrowers or any of them in excess of $100,000. Without limiting the gen-
erality of the foregoing, whenever any Borrower gives notice to the Lenders
pursuant to this SECTION 10.7 with respect to a matter which could
reasonably be expected to result in liability to the Borrowers or any of
them in excess of $500,000 in the aggregate, such Borrower shall, at the
Lenders' request and such Borrower's expense (a) cause an independent
environmental engineer acceptable to the Lenders to conduct such tests of
the site where the noncompliance or alleged non-compliance with Environ-
mental Laws has occurred and prepare and deliver to the Lenders a report
setting forth the results of such tests, a proposed plan for responding to
any environmental problems described therein, and an estimate of the costs
thereof and (b) provide to the Lenders a supplemental report of such
engineer whenever the scope of the environmental problems, or the response
thereto or the estimated costs thereof, shall materially change. The
Borrowers shall complete, within a reasonable time, but in no event more
than 30 days from receipt, in a manner substantially satisfactory to the
Agent, any Environmental Questionnaire and Disclosure Statement forms
delivered to the Borrowers by the Agent from time to time. In furtherance
and not in
EX-10.26-84
limitation of the provisions of this SECTION 10.7, GDT agrees to use its
best efforts to cause the applicable utility to replace any utility-owned
transformer containing PCBs located at the Real Estate at 600 Lathrop
Avenue in Savannah, Georgia with a transformer that complies with Legal
Requirements.
10.8 ERISA. (a) For each Plan adopted by such Borrower, such
Borrower shall (i) use its best efforts to seek and receive a determination
letter from the IRS that such Plan is qualified under Section 401(a) of the
Code, and (ii) from and after the adoption of any such Plan, use its best
efforts to cause such Plan to be qualified under Section 401(a) of the Code
and to be administered in all material respects in accordance with the
requirements of ERISA and Section 401(a) of the Code, and (iii) not take
any action which would cause such Plan not to be qualified under Section
401(a) of the Code or not to be administered in all material respects in
accordance with the requirements of ERISA and Section 401(a) of the Code.
(b) Such Borrower shall not, and shall not permit any Subsidiary
of such Borrower to, do any of the following to the extent such act or
failure to act would singly or in the aggregate, after taking into account
all other such acts or failures to act, have a Material Adverse Effect:
(i) Engage in any prohibited transaction for which an
exemption is not available or has not been previously obtained
from the DOL in connection with which such Borrower or any
Subsidiary could be subject to either a civil penalty assessed
pursuant to Section 502(i) of ERISA or tax imposed by Section
4975 of the Code;
(ii) Permit to exist any accumulated funding deficiency
(whether or not waived), as defined in Section 302 of ERISA and
Section 412 of the Code;
(iii) Fail to pay timely required contributions or
installments due with respect to any waived funding deficiency to
any Plan;
(iv) Fail to make any contribution or payment to any Multi-
employer Plan which Borrower or any Subsidiary may be required to
make under any agreement relating to such Multiemployer Plan, or
any law pertaining thereto;
(v) Terminate, or permit a Subsidiary to terminate, any
Benefit Plan which would result in any liability of such Borrower
or a Subsidiary under Title IV of ERISA;
(vi) Fail to pay any required installment under section (m)
of Section 412 of the Code or any other payment required under
Section 412 of the Code on or before the due date for such
installment or other payment; or
(vii) Amend any Benefit Plan resulting in an increase in
current liability for the plan year such that such Borrower or a
Subsidiary is required to provide security to such Plan under
Section 401(a)(29) of the Code.
10.9 MERGERS, CONSOLIDATIONS OR SALES. Such Borrower shall not,
and shall not permit any of its Subsidiaries to, enter into any transaction
of merger, reorganization, or consolidation, or transfer, sell, assign,
EX-10.26-85
lease, or otherwise dispose of all or any part of its property, or wind up,
liquidate or dissolve, or agree to do any of the foregoing, except:
(i) For sales of Inventory in the ordinary course of its
business;
(ii) Dispositions of obsolete or unusable Equipment to the
extent permitted by, and in accordance with the provisions of,
SECTION 7.10;
(iii) For mergers or consolidations of any Subsidiary of
GDT into GDT or any other wholly-owned Subsidiary of GDT
occurring after 30 days prior written notice thereof to the
Lenders, PROVIDED that in any merger or consolidation involving
GDT, GDT shall be the surviving corporation; and
(iv) As otherwise expressly permitted hereby.
10.10 CAPITAL CHANGES. Such Borrower shall not, and shall not
permit any of its Subsidiaries to, make any change in its capital structure
which could adversely affect the repayment of the Obligations or the
Solvency of the Borrowers (or any of them).
10.11 TRANSACTIONS AFFECTING COLLATERAL, REAL ESTATE OR
OBLIGATIONS. Such Borrower shall not, and shall not permit any of its
Subsidiaries to, (a) enter into any transaction which could reasonably be
expected to have a Material Adverse Effect, (b) enter into any Floor Plan
Financing Agreement, other than the Operating Agreements in effect on the
date hereof to which Associates is a party, (c) maintain in the State of
Tennessee at any time property, including, without limitation, Receivables,
Inventory and Equipment having an aggregate fair market value in excess of
the value stated by the Agent in or in connection with any UCC financing
statement on file in such state with respect to such property and in effect
at such time, (d) acquire, directly or indirectly, any interest in any real
property having a value, individually or in the aggregate, in excess of
$100,000 in any calendar year (such amount to include any and all liabili-
ties or claims, whether actual or potential, with respect to such real
property), as determined by the Agent in its sole discretion; PROVIDED,
however, that GDT shall have the right to lease an interest in the real
property in the general vicinity of and in the general configuration of the
0.474 acre parcel shown on the attached SCHEDULE 10.11 so long as no
buildings, improvements (other than fencing) and fixtures are thereafter
constructed thereon by any Person, or (e) obtain a refund of any Taxes
required to be paid in connection with the perfection of the Liens intended
to be granted to the Agent under this Agreement or any of the other Loan
Documents unless the Borrowers shall have delivered to the Agent an opinion
of counsel acceptable to the Agent, in form and substance acceptable to the
Agent, to the effect that, after giving effect to such refund, all Taxes
required to be paid to perfect the Liens intended to be granted under the
Loan Documents in the property located in the jurisdiction from which the
refund is sought have been paid.
10.12 GUARANTIES. Such Borrower shall not, and shall not permit
any of its Subsidiaries to, make, issue, or become liable on any Guaranty,
except:
(a) Guaranties in favor of the Agent;
EX-10.26-86
(b) Endorsements of negotiable instruments for collection
in the ordinary course of business;
(c) Guaranties by GDT and/or Subsidiaries of GDT of (i)
conditional sale contracts or chattel paper representing the sale and
financing of GDT's Inventory as long as such transactions are entered
into in the ordinary course of the Borrowers' business and such
documents are sold to third party lenders within thirty (30) days and
(ii) retail financing or leasing by third parties of GDT's Inventory;
PROVIDED HOWEVER, that the aggregate amount guaranteed under this
CLAUSE (c) of SECTION 10.12 shall not exceed at any time for GDT and
such Subsidiaries more than $15,000,000 in the aggregate and expressly
prohibiting in all cases the employment of funds for such purposes;
and
(d) Guaranties by GDT of the trade accounts payable of its
Subsidiaries and its dealers; PROVIDED, HOWEVER, that the aggregate
liability of GDT under all such guaranties permitted by this CLAUSE
(d) shall not exceed $500,000 at any one time outstanding.
10.13 DEBT. Such Borrower shall not, and shall not permit any of
its Subsidiaries to, incur or maintain any Debt, other than: (a) the
Obligations; (b) trade payables and contractual obligations to suppliers,
customers and others incurred in the ordinary course of business; (c) Debt
incurred to finance the purchase of Equipment constituting Capital
Expenditures so long as, with respect to all Capital Expenditures, the
principal amount of Debt for any such purchase of Equipment does not exceed
the purchase price of such Equipment; (d) other Debt existing on the
Effective Date and reflected in the pro forma balance sheet and the
accompanying notes thereto attached as SCHEDULE 1.1-B and the audited
consolidated balance sheets and the accompanying notes thereto of GDT and
its Subsidiaries as of December 31, 1993 delivered to the Agent pursuant to
SECTION 9.6; (e) the unmatured contingent liability of GDT to Associates
under the Floor Plan Financing Agreements to which Associates is a party;
(f) Debt of a Borrower owing to any other Borrower; and (g) additional Debt
not contemplated by clauses (a) - (f) above, so long as such Debt shall not
exceed $2,500,000 in the aggregate for all Borrowers and all of their
Subsidiaries at any time outstanding.
10.14 PREPAYMENT. Such Borrower shall not, and shall not permit
any of its Subsidiaries to, voluntarily prepay any indebtedness for
borrowed money, except (i) the Obligations in accordance with their
respective terms and (ii) other indebtedness not to exceed $100,000 in the
aggregate in any Fiscal Year for all Borrowers.
10.15 TRANSACTIONS WITH AFFILIATES. Except as set forth below,
such Borrower shall not, and shall not permit any of its Subsidiaries to,
sell, transfer, distribute, or pay any money or property, including, but
not limited to, any fees or expenses of any nature (including, but not
limited to, any fees or expenses for management services), except actual
expenses incurred and approved in advance in writing by the Agent, to any
Affiliate, or lend or advance money or property to any Affiliate, or invest
in (by capital contribution or otherwise) or purchase or repurchase any
stock or indebtedness, or any property, of any Affiliate, or become liable
on any Guaranty of the indebtedness, dividends, or other obligations of any
Affiliate. Notwithstanding the foregoing, (a) if no Default or Event of
Default has occurred and is continuing or would result from any of the
events described in clauses (i) through (iv), inclusive, below, such
Borrower and its Subsidiaries may (i) engage in any transaction exclusively
among Borrowers, (ii) make Distributions not otherwise restricted by SEC-
TION 10.26,
EX-10.26-87
provided that the excess of (A) the Aggregate Availability immediately
prior to and after giving effect to such Distribution over (B) trade
payables of any and all Borrowers which are more than 45 days past due as
of the date of such Distribution shall be at least $10,000,000, (iii) make
guarantees permitted by and in accordance with SECTION 10.12, and (iv)
engage in transactions in the ordinary course of business, in amounts and
upon terms fully disclosed to the Agent, and no less favorable to such
Borrower or such Subsidiary than would be obtained in a comparable arm's-
length transaction with a third party who is not an Affiliate, and (b)
notwithstanding the foregoing, nothing contained in this Agreement shall
prohibit the Borrowers from paying Dividends to Holdings from funds legally
available to pay such dividends or from paying federal or state taxes upon
their income.
10.16 INVESTMENT BANKING AND FINDER'S FEES. Such Borrower shall
not, and shall not permit any of its Subsidiaries to, pay or agree to pay,
or reimburse any other party (other than the Agent and the Lenders) with
respect to, any investment banking or similar or related fee, underwriter's
fee, finder's fee, or broker's fee to any Person in connection with this
Agreement. Such Borrower shall defend and indemnify the Lenders and the
Agent against and hold them harmless from all claims of any Person for any
such fees, and all costs and expenses (including without limitation,
attorneys fees) incurred by the Lenders or the Agent in connection
therewith.
10.17 BUSINESS CONDUCTED. Such Borrower shall not, and shall not
permit any of its Subsidiaries to, engage, directly or indirectly, in any
line of business other than the businesses in which such Borrower is and
its Subsidiaries are engaged on the Effective Date or the businesses in
which such Borrower and its Subsidiaries were engaged on the date of the
Original Agreement.
10.18 LIENS. Such Borrower shall not, and shall not permit any
of its Subsidiaries to, create, incur, assume, or permit to exist any Lien
on any property now owned or hereafter acquired by any of them, except
Permitted Liens and Liens with respect to the Equipment located on the Real
Estate in Terre Haute, Indiana and such Real Estate in favor of Persons,
other than the Lenders, providing any financing with respect to the
Equipment on such Real Estate.
10.19 SALE AND LEASEBACK TRANSACTIONS. Such Borrower shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly,
enter into any arrangement with any Person providing for such Borrower or
Subsidiary to lease or rent property that such Borrower or Subsidiary has
sold or transferred or will sell or otherwise transfer to such Person;
PROVIDED, HOWEVER, the Borrowers may enter into sale leaseback transactions
in the ordinary course of the Borrowers' business as conducted on the
Effective Date which do not exceed $1,500,000 in aggregate for all
Borrowers in any Fiscal Year.
10.20 NEW SUBSIDIARIES. Such Borrower shall not, directly or
indirectly, organize or acquire any Subsidiary of such Borrower unless such
Subsidiary shall execute a guaranty and security agreement in form and
substance satisfactory to the Agent, together with such other instruments,
documents and agreements (including, without limitation, UCC financing
statements) as the Agent may reasonably request, in form and substance
satisfactory to the Agent.
10.21 RESTRICTED INVESTMENTS. Such Borrower shall not, and shall
not permit any of its Subsidiaries to, make any Restricted Investment.
EX-10.26-88
10.22 [Intentionally Omitted]
10.23 [Intentionally Omitted]
10.24 MINIMUM INTEREST COVERAGE. The Borrowers will maintain a
ratio of (a)(i) EBITDA as determined at the end of each calendar month for
the preceding three-month period minus (ii) any Distributions made to
Holdings during such preceding three-month period to the extent NOT
included in calculating EBITDA to (b) interest expense (excluding in the
determination of interest expense the Closing Fee, and all other fees and
expenses incurred by the Borrowers in connection with the closing of this
transaction contemplated by this Agreement) net of interest income for such
preceding three-month period, of not less than 1.1 to 1.0.
For the purpose of this SECTION 10.24, "Distributions made to
Holdings" shall exclude the following Distributions made or to be made by
GDT to Holdings: $30,000,000 in December 1994, $7,000,000 in January,
1995, $15,000,000 on the Effective Date and up to $8,000,000 not later than
June 30, 1995.
10.25 FIXED MATURITY COVERAGE. The Borrowers will maintain a
ratio of (a)(i) EBITDA as determined at the end of each calendar month for
the immediately preceding twelve-month period minus (ii) any Distributions
made to Holdings to the extent NOT included in calculating EBITDA MINUS
(iii) Capital Expenditures (excluding up to $7,000,000 of Capital
Expenditures with respect to Terre Haute Equipment financed by any Person
including the Lenders but excluding a Borrower or Affiliate thereof through
February 29, 1996) minus (iv) federal or state income taxes paid or
deferred (unless included in clause (ii) above) minus (v) the amount of
cash expended with respect to extraordinary gains or losses, in each case
during such preceding twelve-month period to (b) principal payments which
the Borrowers were required to make on Borrowed Money, PLUS principal
payments made or required to be made on Capital Expenditures financed by
any Person including the Lenders, PLUS interest expense on any of the
foregoing, during such preceding twelve-month period, of not less than 1.1
to 1.0.
For the purpose of this SECTION 10.25 "Distributions made to
Holdings" shall exclude the following Distributions made or to be made by
GDT to Holdings: $30,000,000 in December 1994, $7,000,000 in January,
1995, $15,000,000 on the Effective Date and up to $8,000,000 not later than
June 30, 1995.
10.26 INTERCOMPANY LOANS. No Borrower shall make any loan,
advance or other financial accommodation for the purpose, directly or
indirectly, of financing any Redemption pursuant to a Tender Offer or an
Exchange Offer unless:
(i) simultaneously with the making of such loan, advance or
other financial accommodation and Redemption, GDT shall have delivered
to the Agent, for the benefit of the Lenders and in form and substance
reasonably satisfactory to the Agent,
(x) written representations and warranties of Holdings to
the Lenders and the Agent to the effect that (1) as of the date
of such loan, advance or other financial accommodation and
Redemption, each of the Tender Offer Documents or Exchange Offer
Documents, as applicable, if required to be filed with the SEC or
other securities authority complied in all material respects with
the
EX-10.26-89
provisions of the Securities Exchange Act and the rules and
regulations thereunder and all other Requirements of Law; and (2)
the Tender Offer Documents or Exchange Offer Documents, as
applicable, as of the time they were distributed to security
holders and all times subsequent thereto, did not and do not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were
made, not misleading; in each case together with the written
indemnity of Holdings for damages, costs and expenses incurred by
any Secured Creditor resulting from the breach, in any material
respect, of any such representation and warranty of Holdings; and
(y) a favorable opinion of counsel for Holdings addressed
to the Lenders and the Agent to the effect that (1) the
representations, warranties and indemnity referred to in CLAUSE
(x) above were duly authorized, executed and delivered and are
(subject to (x) customary creditors' rights and equitable
remedies exceptions and (y) with respect to such indemnity,
considerations of public policy) enforceable against Holdings in
accordance with their terms; (2) to such counsel's knowledge, no
action has been taken by any competent authority which restrains,
prevents or imposes any material adverse condition upon, or seeks
to restrain, prevent or impose any material adverse condition
upon, such Tender Offer or Exchange Offer, as applicable; (3) the
Tender Offer Documents or Exchange Offer Documents, as
applicable, if required to be filed by Holdings with the SEC in
connection with the Tender Offer or Exchange Offer, as
applicable, and other relevant documents required thereby (except
for the financial and statistical data contained or incorporated
by reference therein, as to which such counsel expresses no
opinion), at all relevant times complied as to form in all
material respects with the applicable requirements of the
Securities Exchange Act and Securities Act and the rules and
regulations thereunder; (4) such Tender Offer Documents or
Exchange Offer Documents, as applicable, if required to be filed
with the SEC, have been duly filed by Holdings with the SEC; and
(5) during the course of the preparation of the Tender Offer
Documents or Exchange Offer Documents, as applicable, such
counsel participated in conferences and discussions with various
officers and other representatives of Holdings and its
Affiliates, at which the contents of the Tender Offer Documents
or Exchange Offer Documents, as applicable, were discussed;
although such counsel has made no special investigation of
representations made by officers and other representatives of
Holdings and its Affiliates and has not verified and is not
passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the
Tender Offer Documents or Exchange Offer Documents, as
applicable, based upon such counsel's participation in such
conferences and discussions, and relying as to materiality upon
officers and other representatives of Holdings and its
Affiliates, such counsel advises the Lenders and Agent that no
facts have come to such counsel's attention which lead such
counsel to believe that, at any relevant time, the Tender Offer
Documents or Exchange Offer Documents, as applicable, contained
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel
expresses no
EX-10.26-90
view with respect to the financial statements and related notes,
statistical and accounting data contained or incorporated by
reference in the Tender Offer Documents or Exchange Offer
Documents, as applicable); and such opinion shall also cover such
other matters with respect to Holdings' corporate organization,
existence, good standing and related issues as the Agent may
reasonably require; and
(z) such other documents and instruments as the Agent may
reasonably require; and
(ii) the representations and warranties of Holdings made pursuant
to SUBSECTION (b)(i)(x) of this SECTION 10.26 shall be true and
correct in all material respects.
10.27 FISCAL YEAR. Such Borrower will not change its Fiscal Year
from a fiscal year ending on the last day of December.
10.28 NO AMENDMENT OF CHARTER, BY-LAWS. Such Borrower will not,
and will not permit any of its Subsidiaries to, without the prior written
consent of the Agent, amend or modify its Certificate of Incorporation or
By-Laws in any manner which would adversely affect the ability of the
Borrowers to perform their Obligations hereunder and under the Loan
Documents.
10.29 FURTHER ASSURANCES. Such Borrower shall execute and
deliver, or cause to be executed and delivered, to the Lenders and the
Agent such documents and agreements, and shall take or cause to be taken
such actions, as the Lenders and the Agent may, from time to time,
reasonably request to carry out the terms and conditions of this Agreement
and the other Loan Documents.
10.30 USE OF PROCEEDS FOR SHAREHOLDER LOANS. In the event any
proceeds of a Loan are advanced or distributed by a Borrower to Holdings in
the form of a Distribution or otherwise, in each case for the purpose of
enabling Holdings to repay indebtedness owed by Holdings to any of its
shareholders, such Borrower shall deliver, or cause Holdings to deliver, to
the Agent evidence, in form and substance satisfactory to the Agent, of the
repayment of such indebtedness. The requirements of this SECTION 10.30
shall be in addition to, and not in lieu of, any other covenants and
obligations of the Borrowers under this Agreement.
10.31 DELIVERY OF ACKNOWLEDGEMENT COPIES OF UCC-3'S. The
Borrowers shall, within 30 days after the filing thereof, deliver to the
Agent all acknowledgement copies of amendments to the UCC-1s filed in
connection with the Original Agreement.
10.32 REVENUE DEPARTMENT RULING AND TAX OPINION. GDT shall (a)
promptly employ its best efforts to apply for and cause to be issued by the
Georgia Department of Revenue a ruling (the "Ruling") to the effect that no
further Georgia Intangibles Tax is payable with respect to the Term Notes
by reason of the issuance of the Term Notes issued to the Lenders parties
hereto on each Term Funding Date or any new Term Notes issued pursuant to
the provisions of SECTION 14.3(d), and (b) promptly after the issuance of
the Ruling, cause the Tax Opinion to be delivered to the Agent.
EX-10.26-91
11. CONDITIONS OF LENDING.
11.1 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT, MAKING
OF INITIAL REVOLVING LOANS AND ISSUANCE OF LETTERS OF CREDIT AND BANKER'S
ACCEPTANCES ON THE EFFECTIVE DATE AND MAKING OF TERM LOANS ON THE INITIAL
TERM LOAN FUNDING DATE. The effectiveness of this Agreement, the
obligation of each Lender to make the initial Revolving Loans on the
Effective Date, the obligation of each Lender to make the initial portion
of the New Term Loan Funding on the Initial Term Loan Funding Date, the
obligation of the Agent to cause to be issued any Letter of Credit or
Banker's Acceptance on the Effective Date or of BOA to issue any such
Letter of Credit or Banker's Acceptance, and the obligation of the Lenders
to participate in Letters of Credit or Banker's Acceptances issued on the
Effective Date, are subject to the Initial Term Loan Funding Date and the
Effective Date occurring on the same date and the following conditions
precedent having been satisfied in a manner satisfactory to the Lenders:
(a) Each Borrower shall have performed and complied with
all covenants, agreements and conditions contained herein which
are required to be performed or complied with by such Borrower
before or on such Effective Date and Initial Term Loan Funding
Date.
(b) The Lenders shall have received a certificate dated the
Effective Date and signed by the president or a vice president
and the chief financial officer or treasurer of such Borrower
certifying that the conditions specified in SECTION 11.1(a) have
been fulfilled and that the representations and warranties
contained in this Agreement are true and correct on such date and
no Default or Event of Default has occurred and is continuing on
such date or would result from such extension of credit.
(c) The Lenders shall have received all items on the List
of Closing Documents attached hereto as EXHIBIT D which are not
elsewhere identified in this ARTICLE 11, such items to be in form
and substance reasonably satisfactory to the Lenders, and to be
executed by all parties thereto when the nature of such items so
requires.
(d) All proceedings taken in connection with the execution
of this Agreement, all other Loan Documents and all documents and
papers relating thereto shall be satisfactory to the Lenders.
The Lenders shall have received copies of such documents and
papers as the Lenders may reasonably request in connection
therewith, all in form and substance reasonably satisfactory to
the Lenders.
(e) The excess of (i) the Aggregate Availability after
giving effect to the Revolving Loans made or outstanding and the
Letters of Credit or Banker's Acceptances issued or outstanding
on the Effective Date OVER (ii) trade payables of any and all
Borrowers which are more than 45 days past due as of the
Effective Date and any Distributions to be made within thirty
(30) days after the Effective Date shall be at least $15,000,000.
(f) The Borrowers shall have delivered to the Lenders a pro
forma consolidated balance sheet of GDT and its Subsidiaries as
of December 31, 1994, prepared on a going concern basis,
reflecting (i) the fair market values of the Borrowers' real
property, machinery and equipment, and (ii) the fair values of
the Borrowers'
EX-10.26-92
other assets, and (iii) the portion of the New Term Loan Funding
amount to be made on the Initial Term Funding Date determined based on
such reported fair values (as the same may have been adjusted downward
by the Agent), eliminating as an asset any amount of "goodwill" stated
as a line item on such balance sheet and taking into account the
effect of any Distributions made after December 31, 1994 or
contemplated, as of the Initial Term Funding Date, to be made on or
within thirty (30) days after the Initial Term Funding Date. Such
adjusted pro forma balance sheet shall show that GDT and its
Subsidiaries are solvent (to the extent that the definition "Solvent"
depends on balance sheet measures).
(g) The Agent shall have received the Closing Fee.
The acceptance by a Borrower of any Loans made on the Effective Date, and
the request for the issuance of any Letter of Credit or Banker's Acceptance
on the Effective Date, shall be deemed to be a representation and warranty
made by such Borrower to the effect that all of the conditions to the
making of such Loans or the issuance of such Letter of Credit or Banker's
Acceptance set forth in this SECTION 11.1 have been satisfied, with the
same effect as delivery to the Lenders of a certificate signed by the
president and chief financial officer of such Borrower, dated the Effective
Date, to such effect.
11.2 CONDITIONS PRECEDENT TO MAKING OF TERM LOANS ON EACH TERM
FUNDING DATE. The obligation of each Lender to make the Term Loans
constituting the New Term Loan Funding on each Term Funding Date is subject
to the following conditions precedent having been satisfied in a manner
satisfactory to the Lenders:
(a) Each Borrower shall have performed and complied with
all covenants, agreements and conditions contained herein which
are required to be performed or complied with by such Borrower
before or on such Term Funding Date and the Effective Date shall
have occurred.
(b) The Lenders shall have received a certificate dated the
applicable Term Funding Date signed by the president or a vice
president and the chief financial officer or treasurer of GDT
certifying that the conditions specified in SECTION 11.2(a) have
been fulfilled and that the representations and warranties
contained in this Agreement are true and correct on such date and
no Default or Event of Default has occurred and is continuing on
such date or would result from such extension of credit.
(c) The Lenders shall have received all items on the List
of Closing Documents attached hereto as EXHIBIT D which are not
elsewhere identified in this ARTICLE 11, such items to be in form
and substance satisfactory to the Lenders, and to be executed by
all parties thereto when the nature of such items so requires.
(d) All proceedings taken in connection with the execution
of this Agreement, the Term Notes, all other Loan Documents and
all documents and papers relating thereto shall be satisfactory
to the Lenders. The Lenders shall have received copies of such
documents and papers as the Lenders may reasonably request in
connection therewith, all in form and substance satisfactory to
the Lenders.
(e) Nothing shall have come to the attention of the Lenders
after the Effective Date in connection with their continuing review
EX-10.26-93
of all business and legal issues pertaining to the transactions
contemplated by this Agreement which, in the reasonable judgment of
the Lenders, constitutes a Material Adverse Effect.
(f) The excess of (i) the Aggregate Availability after
giving effect to the Loans made or outstanding and the Letters of
Credit or Banker's Acceptances issued or outstanding on such Term
Funding Date OVER (ii) trade payables of any and all Borrowers
which are more than 45 days past due as of such Term Funding Date
and any Distributions to be made within thirty (30) days after
such Term Funding Date shall be at least $20,000,000.
The acceptance by GDT of any Term Loans made on each Term Funding Date
shall be deemed to be a representation and warranty made by GDT to the
effect that all of the conditions to the making of such Term Loans set
forth in this SECTION 11.2 have been satisfied, with the same effect as
delivery to the Lenders of a certificate signed by the president or chief
financial officer of GDT, dated such Term Funding Date, to such effect.
11.3 CONDITIONS PRECEDENT TO EACH LOAN, LETTER OF CREDIT AND
BANKER'S ACCEPTANCE. The obligation of each Lender to make Term Loans on
each Term Funding Date and to make Revolving Loans, including the initial
Loans made on the Effective Date, and the obligation of the Agent to cause
to be issued (or of any Lender to issue) any Letter of Credit or Banker's
Acceptance and of the Lenders to participate in Letters of Credit or
Banker's Acceptances, shall be subject to the further conditions precedent
that on the date of any such extension of credit:
(a) With respect to a request for Loans, the Agent shall
have received, on or before the applicable Funding Date, an
original and duly executed Notice of Borrowing, or telecopy or
telex notice in lieu thereof, as and when required pursuant to
SECTION 2.2;
(b) The acceptance by a Borrower of any extension of credit
shall be deemed to be a statement to the effect set forth in
clauses (i) and (ii) below (which statement shall be true), with
the same effect as the delivery to the Lenders of a certificate
signed by the president and chief financial officer of such
Borrower, dated the date of such extension of credit, stating
that:
(i) The representations and warranties contained
in this Agreement, other than those set forth in
SECTIONS 9.4 (except to the extent that SECTION 9.4
relates to the business conducted by the Borrowers),
9.5, and 9.13, are correct in all material respects on
and as of the date of such extension of credit as
though made on and as of such date, except to the
extent the Lenders have been notified by such Borrower
that any such representation or warranty is not correct
and the Majority Lenders have explicitly waived in
writing compliance with such representation or war-
ranty; and
(ii) No event has occurred and is continuing, or
would result from such extension of credit, which
constitutes a Default or an Event of Default; and
(c) the Agent shall have received such other approvals,
opinions or documents as the Agent may reasonably request.
EX-10.26-94
Each submission by GDT to the Agent of a Notice of Borrowing or telephonic
request with respect to a Revolving Loan and the acceptance by a Borrower
of the proceeds of each such Loan, or the request for the issuance of a
Letter of Credit or Banker's Acceptance and the issuance of such Letter of
Credit or Banker's Acceptance, shall constitute a representation and
warranty by the Borrowers as of the Funding Date in respect of such
Revolving Loan and the date of issuance of such Letter of Credit or
Banker's Acceptance that all of the conditions contained in this ARTICLE 11
have been satisfied.
12. DEFAULT; REMEDIES.
12.1 EVENTS OF DEFAULT. It shall constitute an event of default
("Event of Default") if any one or more of the following shall occur for
any reason:
(a) any failure to pay the principal of or interest or
premium on any of the Obligations when due, whether upon demand
or otherwise;
(b) any representation or warranty made by any Borrower or
any of its Subsidiaries in this Agreement, any of the other Loan
Documents, any Financial Statement, or any certificate furnished
by any such Borrower or Subsidiary at any time to the Agent or
any Lender shall prove to be untrue in any material respect as of
the date on which made and such Borrowers shall fail to cause or
render immaterial the fact or condition causing such
representation or warranty to be untrue in any material respect
within (i) ten (10) days after notice of such failure by the
Agent to such Borrower, (ii) thirty (30) days after the date that
such Borrower discovers, or reasonably should have discovered,
such failure, or (iii) if such failure shall have existed for
more than forty-five (45) days, five (5) days after the earlier
of (A) written notice thereof from the Agent to such Borrower or
(B) such Borrower's discovery of such failure;
(c) any failure by (i) any Borrower to comply with any of
the covenants set forth in ARTICLE 10 of this Agreement; or (ii)
any failure by any Borrower or Holdings to comply with any of the
covenants set forth in the Holdings Stock Agreement;
(d) any failure by any Borrower to comply with any of the
other covenants and agreements contained in this Agreement, the
Term Notes, the other Loan Documents, or any other agreement
entered into at any time to which any Borrower or any Subsidiary
of any Borrower and the Agent or any of the Lenders are party,
for more than (i) ten (10) days after notice of such failure by
the Agent to such Borrower, (ii) thirty (30) days after the date
that such Borrower discovers, or reasonably should have dis-
covered, such failure, or (iii) if such failure shall have
existed for more than forty-five (45) days, five (5) days after
the earlier of (A) written notice thereof from the Agent to such
Borrower or (B) such Borrower's discovery of such failure; or if
any such agreement, instrument or document shall terminate (other
than in accordance with its terms or the terms hereof or with the
written consent of the Majority Lenders and the Agent);
(e) any default in the payment of any principal, interest
or premium with respect to any Debt for borrowed money or any
EX-10.26-95
indebtedness for borrowed money of any Borrower or of any Subsidiary
of such Borrower (other than the Obligations) in an outstanding prin-
cipal amount in excess of $500,000 or under any agreement or instru-
ment under or pursuant to which any such Debt or indebtedness may have
been issued, created, assumed, or guaranteed by such Borrower or Sub-
sidiary, and such default shall continue for more than the period of
grace, if any, therein specified, or any such Debt or indebtedness
shall be declared due and payable prior to the stated maturity
thereof;
(f) Holdings, any Borrower or any Subsidiary of any
Borrower shall (i) file a voluntary petition in bankruptcy or
file a voluntary petition or an answer or otherwise commence any
action or proceeding seeking reorganization, arrangement or
readjustment of its debts or for any other relief under the Bank-
ruptcy Code, as amended, or under any other bankruptcy or
insolvency act or law, state or federal, now or hereafter
existing, or consent to, approve of or acquiesce in, any such
petition, action or proceeding; (ii) apply for or acquiesce in
the appointment of a receiver, assignee, liquidator,
sequestrator, custodian, trustee or similar officer for it or for
all or any part of its property; (iii) make an assignment for the
benefit of creditors; or (iv) be unable generally to pay its
debts as they become due;
(g) an involuntary petition shall be filed or an action or
proceeding otherwise commenced seeking reorganization,
arrangement or readjustment of Holdings', any Borrower's or any
Borrower's Subsidiary's debts or for any other relief under the
Bankruptcy Code, as amended, or under any other bankruptcy or
insolvency act or law, state or federal, now or hereafter
existing and such petition, action or proceeding is not
controverted by appropriate proceedings diligently pursued within
thirty (30) days and is not dismissed within sixty (60) days;
(h) a receiver, assignee, liquidator, sequestrator,
custodian, trustee or similar officer for Holdings, any Borrower
or any Subsidiary of any Borrower or for all or any part of their
respective property shall be appointed; or a warrant of
attachment, execution or similar process shall be issued against
any part of the property of Holdings, any Borrower or any
Subsidiary of any Borrower and is not controverted by appropriate
proceedings diligently pursued within thirty (30) days and is not
dismissed within sixty (60) days;
(i) Holdings or any Borrower or any Subsidiary of any
Borrower shall file a certificate of dissolution under applicable
state law or shall be liquidated, dissolved or wound-up, or shall
commence any action or proceeding for dissolution, winding-up or
liquidation, or shall take any corporate action in furtherance of
any of the foregoing, or shall have commenced against it any such
action or proceeding which is not controverted by appropriate
proceedings diligently pursued within thirty (30) days and is not
dismissed within sixty (60) days;
(j) all or substantially all of the property of Holdings or
any Borrower or any Subsidiary of any Borrower shall be national-
ized, expropriated or condemned, seized or otherwise appro-
priated, or custody or control of such property or of Holdings or
any Borrower or any Subsidiary of any Borrower shall be assumed
by any
EX-10.26-96
Public Authority or any court of competent jurisdiction at the
instance of any Public Authority except where contested in good faith
by proper proceedings diligently pursued where a stay of enforcement
is in effect;
(k) any guaranty of the Obligations shall be terminated,
revoked or declared void or invalid or any Guarantor attempts to
terminate or revoke its guaranty of the Obligations or contests
in any proceeding the validity thereof;
(l) one or more final judgments for the payment of money
aggregating in excess of $1,000,000 (net of insurance with
respect to which the insurer has not denied coverage) shall be
rendered against any Borrower or any Subsidiary of any Borrower
which is not discharged in full or stayed within thirty (30) days
after the date of entry thereof;
(m) any loss, theft, damage or destruction of any item or
items of Collateral occurs which has a Material Adverse Effect;
(n) Holdings shall default in the payment when due, whether
by acceleration or otherwise, or in the performance or observance
of the Debentures or any other event or condition shall occur
which results in the acceleration of the maturity of any of the
Debentures or enables the holder or holders thereof or any agent
or trustee for such holders (with or without the giving of notice
or passage of time or both) to accelerate the maturity of any of
the Debentures;
(o) the Holdings Controlling Shareholders (or any estate
of, or trust created by, any Holdings Controlling Shareholder for
tax or estate planning purposes) shall cease to own sufficient
shares of the capital stock of Holdings to elect a majority of
the Board of Directors of Holdings, or the Holdings Controlling
Shareholders shall cease to take all corporate action or shall
cease to have the power to direct and cause the direction of the
management and policies of Holdings, or Holdings shall cease to
own one hundred percent (100%) of the outstanding capital stock
of GDT or cease to have the power to direct and cause the
direction of the management of policies of GDT or to take all
corporate action;
(p) there occurs any material adverse change in the
business, assets or other properties, liabilities, or condition
(financial or otherwise), results of operations or prospects of
Holdings or any Borrower since December 31, 1993;
(q) any Termination Event occurs which the Lenders
reasonably believe could have a Material Adverse Effect;
(r) any plan administrator of any Benefit Plan applies
under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and the Lender
believes that the business hardship which is the basis of such
application could have a Material Adverse Effect; or
(s) (i) on or after the date of the execution and delivery
thereof, any of the Loan Documents shall for any reason, except
to the extent permitted by the terms hereof or thereof and other
than as a result of any default or agreement of the Agent, fail
or cease
EX-10.26-97
to create or constitute a valid, perfected and first priority lien on
or security interest in any Collateral or any Real Estate purported to
be covered thereby or (ii) the Obligations shall be subordinated or
shall not have the priority contemplated by the Loan Documents, for
any reason.
12.2 REMEDIES. (a) If an Event of Default exists, the Agent
may, and at the direction of the Majority Lenders shall, without notice to
or demand on any of the Borrowers, do one or more of the following at any
time or times and in any order: (i) reduce each Borrower's Maximum
Revolver Amount, or the amount of the Revolving Credit Commitments, or the
advance rates against Eligible Accounts and/or Eligible Inventory used in
computing the Maximum Revolver Amounts, or reduce or increase one or more
of the other elements used in computing the Maximum Revolver Amounts and
(ii) restrict the amount of or refuse to make Revolving Loans or to issue
Letters of Credit or Banker's Acceptances. If an Event of Default exists,
the Agent may, and at the direction of the Majority Lenders shall, without
notice to or demand on any Borrower, do one or more of the following, in
addition to the actions described in the preceding sentence, at any time or
times and in any order: (i) terminate the Commitments and this Agreement
and (ii) declare any or all Obligations to be immediately due and payable;
PROVIDED, HOWEVER, that upon the occurrence of any Event of Default
described in SECTIONS 12.1(f), 12.1(g), 12.1(h), or 12.1(i), all Obliga-
tions shall automatically become immediately due and payable without notice
or demand of any kind; and pursue its other rights and remedies under the
Loan Documents and applicable law.
(b) If an Event of Default exists: (i) the Agent and the
Lenders shall have, in addition to all other rights, the rights and
remedies of a secured party under the UCC; (ii) the Agent may, at any time,
take possession of the Collateral and keep it on any of the Borrower's
premises, at no cost to the Lenders or the Agent, or remove any part of it
to such other place or places as the Agent may desire, or each of the
Borrowers shall, upon the Agent's demand, at the Borrowers' cost, assemble
the Collateral and make it available to the Agent at a place reasonably
convenient to the Agent; and (iii) the Agent may sell and deliver any
Collateral at public or private sales, for cash, upon credit or otherwise,
at such prices and upon such terms as the Agent deems advisable, in its
sole discretion, and may, if the Agent deems it reasonable, postpone or
adjourn any sale of the Collateral by an announcement at the time and place
of sale or of such postponed or adjourned sale without giving a new notice
of sale. Without in any way requiring notice to be given in the following
manner, each of the Borrowers agrees that any notice by the Agent of sale,
disposition or other intended action hereunder or in connection herewith,
whether required by the UCC or otherwise, shall constitute reasonable
notice to the Borrower if such notice is mailed by registered or certified
mail, return receipt requested, postage prepaid, or is delivered personally
against receipt, at least ten (10) days prior to such action to the
Borrowers' address specified in or pursuant to Section 16.7. If any
Collateral is sold on terms other than payment in full at the time of sale,
no credit shall be given against the Obligations until the Agent receives
payment, and if the buyer defaults in payment, the Agent may resell the
Collateral without further notice to any of the Borrowers. In the event
the Agent seeks to take possession of all or any portion of the Collateral
by judicial process, each of the Borrowers irrevocably waives: (a) the
posting of any bond, surety or security with respect thereto which might
otherwise be required; (b) any demand for possession prior to the
commencement of any suit or action to recover the Collateral; and (c) any
requirement that the Agent retain possession and not dispose of any Collat-
eral until after trial or final judgment. Each of the Borrowers agrees
that
EX-10.26-98
the Agent has no obligation to preserve rights to the Collateral or
marshall any Collateral for the benefit of any Person. The Agent is hereby
granted a license or other right to use, without charge, each of the
Borrower's labels, patents, copyrights, name, trade secrets, trade names,
trademarks, and advertising matter, or any similar property, in completing
production of, advertising or selling any Collateral, and the rights of
each of the Borrowers under all licenses and all franchise agreements shall
inure to the Agent's benefit. The proceeds of sale shall be applied first
to all expenses of sale, including attorneys' fees, and second, in whatever
order the Agent elects, to all Obligations. The Agent will return any
excess to the applicable Borrower or such other Person as shall be legally
entitled thereto and the Borrowers shall remain liable for any deficiency.
(c) If an Event of Default occurs, each of the Borrowers hereby
waives all rights to notice and hearing prior to the exercise by the Agent
of the Agent's rights to repossess the Collateral without judicial process
or to replevy, attach or levy upon the Collateral without notice or
hearing.
(d) If an Event of Default occurs, the Agent shall have the
right to enter upon the premises of the Borrower where the Collateral is
located (or is believed to be located) without any obligation to pay rent
to the Borrowers, or any other place or places where the Collateral is
believed to be located and kept, and render the Collateral unusable or
remove the Collateral therefrom to the premises of the Agent or any agent
of the Agent, for such time as the Agent may desire, in order to
effectively collect or liquidate the Collateral, and/or the Agent may
require the Borrower to assemble the Collateral and make it available to
the Agent at a place or places to be designated by the Agent. If an Event
of Default occurs, the Agent shall have the right to obtain access to the
Borrowers' data processing equipment, computer hardware and software
relating to the Collateral or the Real Estate and to use all of the
foregoing and the information contained therein in any manner the Agent
deems appropriate; and the Agent shall have the right to notify post office
authorities to change the address for delivery of the Borrowers' mail to an
address designated by the Agent and to receive, open and deal with all mail
addressed to the Borrowers.
13. TERMINATION.
13.1 TERM AND TERMINATION. This Agreement shall terminate on
the fifth Anniversary Date unless terminated on such earlier date as
provided below (the "Termination Date"). The Majority Lenders may also
terminate this Agreement at any time without notice upon an Event of
Default. Upon the termination of this Agreement for any reason whatsoever,
all Obligations (including, without limitation, all accrued and unpaid fees
under Article 4 and all unpaid principal of, accrued interest on and
prepayment penalties, if any, with respect to the Term Loans) shall become
immediately due and payable. Notwithstanding the termination of this
Agreement, until all Obligations are paid and performed in full, the
Lenders and the Agent shall retain all of their respective rights and
remedies hereunder (including, without limitation, the Agent's security
interest, for the benefit of the Secured Creditors, in and all rights and
remedies with respect to all then existing and after-arising Collateral).
14. WAIVER; AMENDMENTS; ASSIGNMENTS; SUCCESSORS.
14.1 NO WAIVER. Failure by the Agent or any Lender to exercise
any right, remedy or option under this Agreement or any present or future
supplement thereto, or in any other agreement between or among any Borrower
EX-10.26-99
and the Agent and/or any Lender, or delay by the Agent or any Lender in
exercising the same, will not operate as a waiver thereof. No waiver by
the Agent or any Lender will be effective unless it is in writing, and then
only to the extent specifically stated. No waiver by the Agent or any
Lender on any occasion shall affect or diminish the Agent's or any Lender's
right thereafter to require strict performance by the Borrowers of any
provision of this Agreement. The Agent's and each Lender's rights and
remedies under this Agreement will be cumulative and not exclusive of any
other right or remedy which the Agent or any Lender may have.
14.2 AMENDMENTS AND WAIVERS. No amendment or modification of
any provision of this Agreement shall be effective without the written
agreement of the Majority Lenders and the Borrowers, and no termination or
waiver of any provision of this Agreement, or consent to any departure by
any Borrower therefrom, shall in any event be effective without the written
concurrence of the Majority Lenders, which the Majority Lenders shall have
the right to grant or withhold at their sole discretion. Notwithstanding
the immediately preceding sentence, any release of any Guaranty made by a
Guarantor or any amendment, modification, or waiver of (a) any provision of
ARTICLE 2, 3 or 4, which amendment, modification or waiver relates to any
increase of the Commitments, any forgiveness of the principal amount of any
Loan or increase in the principal amount of the Term Loans, any extension
or waiver of the time for payment of any installments of principal or
interest on any Term Loans or any provision of SECTION 2.3, the reduction
of the interest rates applicable to any Loans and/or the amount of fees
payable hereunder, shall be effective if, and only if, evidenced by a
writing signed by all Lenders, (b) the definitions of "Aggregate Maximum
Revolver Amount", "Distribution", "Dividend", "Eligible Accounts",
"Eligible Inventory", "Initial Term Funding Date", "Majority Lenders", "Net
Collateral Value", "Pro Rata Share", "Real Estate Term Funding Date",
"Termination Date" and "Terre Haute Term Funding Date", shall be effective
only if evidenced by a writing signed by all Lenders or (c) the provisions
contained in SECTIONS 10.9, 10.15, 10.24, 10.25, 10.26, 11.1(e), 11.2(f),
this SECTION 14.2 and in SECTION 15.8(b)(v), shall be effective only if
evidenced by a writing signed by all Lenders. No amendment, modification,
termination, or waiver of any provision of ARTICLE 15 or any other
provision referring to the Agent or BOA shall be effective without the
written concurrence of the Agent. The Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. Any waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on any
Borrower in any case shall entitle such Borrower to any other or further
notice or demand in similar or other circumstances. Any amendment,
modification, waiver or consent effected in accordance with this SECTION
14.2 shall be binding on each Secured Creditor, each future Secured
Creditor, and, if signed by a Borrower, on such Borrower.
14.3 ASSIGNMENTS; PARTICIPATIONS. (a) Each Lender shall have
the right, with the Agent's consent, at any time to assign to one or more
commercial banks or other financial institutions all or a portion of its
Commitment, the Loans owing to it and Term Notes held by it and its rights
and obligations with respect to Letters of Credit and Banker's Acceptances;
PROVIDED, HOWEVER, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all of the assigning Lender's
corresponding rights and obligations under this Agreement and the
assignment shall apply the same percentage to the Lender's Commitment and
Loans, (ii) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance in
EX-10.26-100
substantially the form of EXHIBIT E ("Assignment and Acceptance"), together
with the Term Notes subject to such assignment and with a processing and
recordation fee of $2,000, and (iii) any assignee shall be (x) a Lender or
Affiliate of a Lender or (y) a commercial bank or other financial
institution which has combined capital, surplus and undivided profits of
not less than $100,000,000 or Affiliates thereof. Upon such execution,
delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be
at least two (2) Business Days after the execution thereof, (A) the as-
signee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations (including, but
not limited to, the obligation to participate in Letters of Credit pursuant
to SECTION 3A.6 and the obligation to participate in Banker's Acceptances
pursuant to SECTION 3B.6) and (B) the assigning Lender thereunder shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other Loan Document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under this Agreement
or any other Loan Document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the Agent, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vi)
such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to
be performed by it as a Lender.
(c) The Agent shall maintain at its address set forth in SECTION
16.7 a copy of each Assignment and Acceptance delivered to and accepted by
it and books and records, including computer records, in which it shall
promptly record the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans owing to, each Lender from time to
time (the "Register"). The entries in the Register shall constitute rebut-
tably presumptive evidence, absent manifest error but subject to the
Borrowers' right to review the Agent's monthly statement and to object to
any entries therein under SECTION 6.1, of the accuracy of the information
contained therein, and the Borrowers, the Agent and the Lenders may treat
each Person
EX-10.26-101
the name of which is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection
by the Borrowers or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee, together with the Term Notes subject
to such assignment, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of EXHIBIT E, (i) accept
such Assignment and Acceptance, (ii) record the information contained
therein in the Register, and (iii) give prompt notice thereof to the
Borrowers. Within five (5) Business Days after the Borrowers' receipt of
such notice, the Borrowers, at their own expense, will execute and deliver
to the Agent in exchange for the surrendered Term Notes, new Term Notes to
the order of such assignee in amounts corresponding to the interest in the
assigning Lender's rights and obligations under this Agreement acquired by
such assignee pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained an interest in such rights and obligations
hereunder, new Term Notes to the order of the assigning Lender in amounts
corresponding to such interest retained by it hereunder. Such new Term
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Term Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of EXHIBIT C. Upon delivery of such new Term Notes,
the surrendered Term Notes shall be cancelled by the Agent and returned to
the applicable Borrower. Notwithstanding the foregoing provisions of this
SECTION 14.3(d), the Agent shall not be obligated to obtain, and no Lender
shall be entitled to the issuance of, new Term Notes following an
assignment under this SECTION 14.3, unless and until either (i) the Ruling
has been issued in form and substance satisfactory to the Agent and the
Agent has received the Tax Opinion, or (ii) the Agent is satisfied that all
Georgia Intangibles Tax payable in connection therewith has been fully paid
or provided for.
(e) Each Lender may grant participations in all or any part of
its rights and obligations under this Agreement (including, without
limitation, all or any part of its Commitment, the Loans, the Letters of
Credit or the Banker's Acceptances, as applicable) to one or more other
Persons; PROVIDED, HOWEVER, that (i) any such disposition shall not,
without the consent of the Borrowers, require any Borrower to file a
registration statement with the SEC or apply to qualify the Loans under the
blue sky law of any state; (ii) such Lender shall make and receive all
payments for the account of its participant and shall retain exclusively,
and shall continue to exercise exclusively, all rights of approval and
administration available hereunder with respect to such Lender's Commitment
and Pro Rata Share of the Loans, Letters of Credit and Banker's
Acceptances, as applicable, even after giving effect to the sale of any
such participation, and such Lender shall make such arrangements with its
participants as may be necessary to accomplish the foregoing and (iii) any
such disposition shall be to (x) a Lender or an Affiliate of a Lender, or
(y) a commercial bank or other financial institution which has combined
capital, surplus and undivided profits of not less than $100,000,000 or
Affiliates thereof. Notwithstanding anything to the contrary in the
foregoing sentence, any participant may be given the right to require the
Lender granting such participant's participation to vote against (1) the
release of all or substantially all of the Collateral, and (2) any
amendment, modification or waiver of any provision of ARTICLE 2, 3 or 4
relating to the principal amount of the Loans, Letter of Credit Obligations
or Banker's Acceptance Obligations, the maturity dates of the Loans,
interest and fees payable hereunder, the interest rates borne by the Loans
and the amounts of
EX-10.26-102
any fees payable under SECTIONS 4.4, 4.4A and 4.5. No holder of a
participation in all or any part of the Loans shall be a "Lender" for any
purpose under this Agreement; PROVIDED, HOWEVER, that each holder of a
participation shall have the rights of a Lender (including any right to
receive payment) under SECTIONS 4.6, 15.5 and 16.6; PROVIDED, FURTHER, that
all requests for any such payments shall be made by a participant through
the Lender granting such participation. The right of each holder of a
participation to receive payment under SECTIONS 4.6, 15.5 and 16.6 shall be
limited to the lesser of (i) the amounts actually incurred by such holder
for which payment is provided under such Sections and (ii) the amounts that
would have been payable under such Sections by the Borrowers to the Lender
granting the participation to such holder had such participation not been
granted.
(f) It is expressly agreed that, in connection with prospective
offers for the sale and transfer of any assignment or any participation
pursuant to this SECTION 14.3, each Lender may provide to such prospective
assignees and participants such information pertaining to the Borrowers as
such Lender may deem appropriate.
(g) Notwithstanding the foregoing provisions of this SECTION
14.3, each Lender may at any time sell, assign, transfer, or negotiate all
or any part of its rights and obligations under this Agreement to any
Affiliate of such Lender.
(h) Notwithstanding the other provisions of this SECTION 14.3,
the obligations of the Borrowers to pay or reimburse the Lenders for
additional amounts of the Georgia Intangibles Tax payable in connection
with the issuance of new Term Notes pursuant to the provisions of SECTION
14.3(d) as a result of an assignment by a Lender shall be limited to
$50,000 in the aggregate in the case of BankAmerica and its assigns, and
$25,000 in the aggregate in the case of each other Lender party hereto on
the Effective Date and its respective assigns; PROVIDED, HOWEVER, that the
limitation on the obligation of the Borrowers set forth in this SUBSECTION
14.3(h) shall terminate and become null and void upon the issuance of the
Ruling and the receipt by the Agent of the Tax Opinion.
14.4 SUCCESSORS AND ASSIGNS. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns (including, without limitation, a receiver, trustee
or debtor-in-possession of a Borrower) and shall inure to the benefit of
the parties hereto and the successors and permitted assigns of the Lenders.
In the event of any such transfer or assignment, the rights and privileges
conferred upon the Lenders shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions
hereof. No Borrower's rights or any interest therein hereunder may be
assigned without the written consent of all of the Lenders.
15. THE AGENT.
15.1 APPOINTMENT. Each Lender hereby ratifies and confirms the
appointment of BankAmerica, pursuant to the terms of the Succession
Agreement, as its Agent under this Agreement and the other Loan Documents,
and each Lender hereby irrevocably authorizes the Agent to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers as are set forth herein or therein,
together with such other powers as are reasonably incidental thereto. The
Agent agrees to act as such on the express conditions contained in this
ARTICLE 15. The provisions of this ARTICLE 15 are solely for the benefit
of
EX-10.26-103
the Secured Creditors, and no Borrower shall have any rights as a third
party beneficiary of any of the provisions hereof (other than as expressly
set forth in SECTION 15.7). In performing its functions and duties under
this Agreement, the Agent shall act solely as agent of the Lenders and does
not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for any Borrower. The Agent may
perform any of its duties under this Agreement, or under the other Loan
Documents, by or through its agents or employees.
15.2 NATURE OF DUTIES. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement or in
the other Loan Documents. Except as expressly provided herein, the duties
of the Agent shall be mechanical and administrative in nature. The Agent
shall have and may use its sole discretion with respect to exercising or
refraining from exercising any discretionary rights or taking or refraining
from taking any actions which the Agent is expressly entitled to take or
assert under this Agreement and the other Loan Documents, including,
without limitation the right to elect remedies under Section 12.2, and any
action so taken or not taken shall be deemed consented to by the Lenders.
The Agent shall not have by reason of this Agreement a fiduciary relation-
ship in respect of any Lender. Nothing in this Agreement or any of the
other Loan Documents, express or implied, is intended to or shall be con-
strued to impose upon the Agent any obligations in respect of this
Agreement or any of the other Loan Documents except as expressly set forth
herein or therein. Each Lender shall make its own independent investiga-
tion of the financial condition and affairs of each Borrower in connection
with the making and the continuance of the Loans hereunder and with the
issuance of the Letters of Credit and Banker's Acceptances, and shall make
its own appraisal of the creditworthiness of each Borrower, and the Agent
shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information with
respect thereto, whether coming into its possession before the date of this
Agreement or at any time or times thereafter. If the Agent seeks the
consent or approval of the Majority Lenders to the taking or refraining
from taking any action hereunder, the Agent shall send notice thereof to
each Lender. Without limitation of the foregoing, the Agent shall obtain
the consent of the Majority Lenders before approving the expenses described
in the first sentence of SECTION 10.15. The Agent shall promptly notify
each Lender any time that the Majority Lenders have instructed the Agent to
act or refrain from acting pursuant hereto. The Agent may employ agents,
co-agents and attorneys-in-fact and shall not be responsible to the Lenders
or the Borrowers, except as to money or securities received by it or its
authorized agents, for the gross negligence or willful misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care.
15.3 RIGHTS, EXCULPATION, ETC. Neither the Agent nor any of its
officers, directors, employees or agents shall be liable to any Lender for
any action taken or omitted by it or any of them under this Agreement or
under any of the other Loan Documents, or in connection herewith or
therewith, except that the Agent shall be obligated on the terms set forth
herein for performance of its express obligations under this Agreement and
except that no Person shall be relieved of any liability imposed by law for
intentional tort. The Agent shall not be liable for any apportionment or
distribution of payments made by it in good faith pursuant to SECTION
5.6(d), and if any such apportionment or distribution is subsequently
determined to have been made in error, the sole recourse of any Secured
Creditor to whom payment was due but not made shall be to recover from
other Secured Creditors any payment in excess of the amount to which they
are determined to have been entitled. The Agent shall not be responsible
to any Lender for any recitals,
EX-10.26-104
statements, representations or warranties contained in this Agreement or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Loan
Documents or any of the transactions contemplated thereby, or for the
financial condition of any Borrower. The Agent shall not be required to
make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement or any of the other
Loan Documents or the financial condition of any Borrower, or the existence
or possible existence of any Default or Event of Default. The Agent may at
any time request instructions from the Lenders with respect to any actions
or approvals which by the terms of this Agreement or of any of the other
Loan Documents the Agent is permitted or required to take or to grant, and
if such instructions are promptly requested, the Agent shall be absolutely
entitled to refrain from taking any action or to withhold any approval and
shall not be under any liability whatsoever to any Person for refraining
from any action or withholding any approval under any of the Loan Documents
until it shall have received such instructions from the Majority Lenders.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining
from acting under this Agreement or any of the other Loan Documents in
accordance with the instructions of the Majority Lenders.
15.4 RELIANCE. The Agent shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents or any
telephone message believed by it in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person, and with
respect to all matters pertaining to this Agreement or any of the other
Loan Documents and its duties hereunder or thereunder, upon advice of
counsel selected by it.
15.5 INDEMNIFICATION. To the extent that the Agent is not
reimbursed and indemnified by the Borrowers, the Lenders will reimburse and
indemnify the Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses,
advances or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating
to or arising out of this Agreement or any of the other Loan Documents or
any action taken or omitted by the Agent under this Agreement or any of the
other Loan Documents, in proportion to each Lender's Pro Rata Share,
including, without limitation, Agent Advances made pursuant to SECTION 15.8
in accordance with the terms of SECTION 15.8; PROVIDED, HOWEVER, that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses,
advances or disbursements resulting from the Agent's gross negligence or
willful misconduct. The obligations of the Lenders under this SECTION 15.5
shall survive the payment in full of the Loans, Letter of Credit
Reimbursement Obligations, Banker's Acceptance Reimbursement Obligations
and the termination of this Agreement.
15.6 BANKAMERICA INDIVIDUALLY. With respect to its Pro Rata
Share of the Commitments hereunder and the Loans made by it and the Letters
of Credit and Banker's Acceptances issued by it, BankAmerica shall have and
may exercise the same rights and powers hereunder and is subject to the
same obligations and liabilities as and to the extent set forth herein for
any other Lender. The terms "Lenders" or "Majority Lenders" or any similar
terms shall, unless the context clearly otherwise indicates, include
BankAmerica in its individual capacity as a Lender or one of the Majority
Lenders.
EX-10.26-105
15.7 SUCCESSOR AGENT.
(a) The Agent may resign from the performance of all of its
functions and duties under this Agreement at any time by giving at least
thirty (30) Business Days' prior written notice to the Borrowers and each
Lender. Such resignation shall take effect upon the acceptance by a
successor Agent of appointment pursuant to clause (b) or (c) below.
(b) Upon any such notice of resignation, the Majority Lenders
shall appoint a successor Agent who shall be reasonably satisfactory to the
Borrowers.
(c) If a successor Agent shall not have been so appointed within
such thirty (30) Business Day period, the retiring Agent, with the consent
of the Borrowers, shall then appoint a successor Agent who shall serve as
Agent until such time, if any, as the Majority Lenders, with the consent of
the Borrowers, shall appoint a successor Agent as provided above.
15.8 COLLATERAL MATTERS.
(a) The Agent is hereby authorized by the Borrowers and the
Lenders, from time to time, before or after the occurrence of an Event of
Default, to make such disbursements and advances ("Agent Advances") pur-
suant to this Agreement and the other Loan Documents which the Agent
reasonably deems necessary or desirable to preserve or protect the
Collateral, or any portion thereof, in order to enhance the likelihood of,
or maximize the amount of, repayment by any Borrower, or any guarantor or
other Person, of the Loans and other Obligations or to pay any other amount
chargeable to either Borrower pursuant to the terms of this Agreement,
including, without limitation, costs, fees and expenses as described in
SECTION 16.5. The Agent Advances shall be repayable on demand and be
secured by the Collateral. The Agent Advances shall not constitute
Revolving Loans but shall otherwise constitute Obligations hereunder and
shall bear interest at the rate applicable to the Reference Rate Loans.
The Agent shall notify each Lender in writing of each such Agent Advance,
which notice shall include a description of the purpose of such Agent
Advance. Without limitation to its obligations pursuant to SECTION 15.5,
each Lender agrees that it shall make available, to the Agent, upon the
Agent's demand, immediately available funds, an amount equal to such
Lender's Pro Rata Share of each such Agent Advance. If such funds are not
made available to the Agent by such Lender within one (1) Business Day
after the Agent's demand therefor, the Agent will be entitled to recover
any such amount from such Lender together with interest thereon at the
Federal Funds Rate for each day during the period commencing on the date of
such demand and ending on the date such amount is received.
(b) The Lenders hereby irrevocably authorize the Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Agent, for the benefit of the Secured Creditors, upon any Collateral
(i) upon termination of the Commitments and payment and satisfaction of all
Loans, Letter of Credit Reimbursement Obligations, other Letter of Credit
Obligations, Banker's Acceptance Reimbursement Obligations and other
Banker's Acceptance Obligations (in each case whether or not due) and all
other Obligations which have matured and which the Agent has been notified
in writing are then due and payable; (ii) constituting property being sold
or disposed of if the applicable Borrower certifies to the Agent that the
sale or disposition is made in compliance with this Agreement (and the
Agent may rely conclusively on any such certificate, without further
inquiry);
EX-10.26-106
(iii) constituting property in which the applicable Borrower owned no
interest at the time the Lien was granted or at any time thereafter; (iv)
constituting property leased to the applicable Borrower under a lease which
has expired or been terminated in a transaction permitted under this Agree-
ment or which will expire imminently and which has not been, and is not
intended by such Borrower to be, renewed or extended; or (v) if approved,
authorized or ratified in writing by the Lenders. Upon request by the
Agent or the Borrowers at any time, the Lenders will confirm in writing the
Agent's authority to release any Lien granted to or held by the Agent, for
the benefit of the Secured Creditors, upon particular types or items of
Collateral pursuant to this SUBSECTION 15.8(b).
(c) So long as no Event of Default has occurred and is then
continuing, upon receipt by the Agent of confirmation from the Majority
Lenders of its authority to release any Lien granted to or held by the
Agent, for the benefit of the Secured Creditors, upon particular types or
items of Collateral, and upon at least five (5) Business Days' prior
written request by the applicable Borrower, the Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Agent, for
the benefit of the Secured Creditors, herein or pursuant hereto upon such
Collateral; PROVIDED, HOWEVER, that (i) the Agent shall not be required to
execute any such document on terms which, in the Agent's opinion, would
expose the Agent to liability or create any obligation or entail any conse-
quence other than the release of such Liens without recourse or warranty,
and (ii) such release shall not in any manner discharge, affect or impair
the Obligations or any Liens (other than those expressly being released)
upon (or obligations of the applicable Borrower in respect of) all inter-
ests retained by such Borrower, including (without limitation) the proceeds
of any sale, all of which shall continue to constitute part of the
Collateral.
(d) The Agent shall have no obligation whatsoever to any Secured
Creditor to assure that the Collateral exists or is owned by any Borrower
or is cared for, protected or insured or has been encumbered or that the
Liens granted to the Agent, for the benefit of the Secured Creditors,
herein or pursuant hereto have been properly or sufficiently or lawfully
created, perfected, protected or enforced or are entitled to any particular
priority, or to exercise at all or in any particular manner or under any
duty of care, disclosure or fidelity, or to continue exercising, any of the
rights, authorities and powers granted or available to the Agent pursuant
to this SECTION 15.8 or pursuant to any of the Loan Documents, it being
understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, the Agent may act in any manner it may
deem appropriate, in its sole discretion, given the Agent's own interest in
the Collateral in its capacity as one of the Lenders and that the Agent
shall have no duty or liability whatsoever to any Secured Creditor as to
any of the foregoing. It is further understood and agreed that this
SECTION 15.8(d) is not intended, nor shall it be construed, to diminish or
relieve the Agent of its obligations and responsibilities to the Secured
Creditors specified in other sections of this Agreement.
15.9 AGENCY FOR PERFECTION. Each Lender hereby appoints each
other Lender as agent for the purpose of perfecting the Lenders' security
interest in assets which, in accordance with Article 9 of the UCC can be
perfected only by possession. Should any Lender (other than the Agent)
obtain possession of any such Collateral, such Lender shall notify the
Agent thereof, and, promptly upon the Agent's request therefor shall
deliver such Collateral to the Agent or in accordance with the Agent's in-
structions.
EX-10.26-107
16. MISCELLANEOUS.
16.1 CUMULATIVE REMEDIES; NO PRIOR RECOURSE TO COLLATERAL. The
enumeration herein of the rights and remedies of the Lenders and the Agent
is not intended to be exclusive, and such rights and remedies are in
addition to and not by way of limitation of any other rights or remedies
that the Lenders and the Agent may have under the UCC or other applicable
law. The Lenders and the Agent shall have the right, in their sole dis-
cretion, to determine which rights and remedies are to be exercised and in
which order. The exercise of one right or remedy shall not preclude the
exercise of any others, all of which shall be cumulative. The Lenders and
the Agent may, without limitation, proceed directly against any Borrower to
collect the Obligations without any prior recourse to the Collateral.
16.2 SEVERABILITY. If any provision of this Agreement shall be
prohibited or invalid under applicable law, it shall be ineffective only to
such extent, without invalidating the remainder of this Agreement.
16.3 GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS; JURY
TRIAL WAIVER. (a) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
(b) SUBJECT ONLY TO THE EXCEPTION IN THE NEXT SENTENCE, THE
BORROWERS, THE LENDERS AND THE AGENT HEREBY AGREE TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE OF NEW YORK SITTING IN THE CITY AND COUNTY OF NEW YORK AND WAIVE ANY
OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION
INSTITUTED THEREIN, AND AGREE THAT ANY DISPUTE CONCERNING THE RELATIONSHIP
AMONG THE LENDERS AND THE AGENT AND ANY BORROWER OR THE CONDUCT OF ANY
PARTY IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE HEARD ONLY IN
THE COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING, THE LENDERS AND
THE AGENT SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST
THE BORROWERS OR THEIR RESPECTIVE PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION THE LENDERS AND THE AGENT DEEM NECESSARY OR APPROPRIATE IN
ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS.
(c) EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE
BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO SUCH BORROWER AT
ITS ADDRESS SET FORTH IN SECTION 16.7 AND SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED
IN THE U.S. MAILS, OR, AT THE LENDERS' AND/OR AGENT'S OPTION, BY SERVICE
UPON HUTTON INGRAM YUZEK GAINEN CARROLL & BERTOLOTTI, AT ITS NOTICE ADDRESS
SET FORTH IN SECTION 16.7 WHICH EACH BORROWER IRREVOCABLY APPOINTS AS SUCH
BORROWER'S AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS WITHIN THE
STATE OF NEW YORK. IN ADDITION, THE LENDERS AND THE AGENT AGREE PROMPTLY
TO FORWARD BY REGISTERED MAIL ANY PROCESS SO SERVED UPON SAID AGENT TO ANY
BORROWER AT ITS ADDRESS SET FORTH IN SECTION 16.7. EACH BORROWER HEREBY
CONSENTS TO SERVICE OF PROCESS AS AFORESAID.
(d) THE BORROWERS, THE LENDERS AND THE AGENT EACH HEREBY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
(i) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM IN RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT
EX-10.26-108
OR AGREEMENT EXECUTED OR DELIVERED, IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. THE
BORROWERS, THE LENDERS AND THE AGENT EACH HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT ANY OF THEM MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
(e) NOTHING IN THIS SECTION 16.3 SHALL AFFECT THE RIGHTS OF THE
LENDERS OR THE AGENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR AFFECT THE RIGHTS OF THE LENDERS OR THE AGENT TO BRING ANY ACTION
OR PROCEEDING AGAINST ANY BORROWER OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION.
16.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of each
Borrower's representations and warranties contained in this Agreement shall
survive the execution, delivery, and acceptance thereof by the parties,
notwithstanding any investigation by the Lenders or the Agent or their
respective agents.
16.5 OTHER SECURITY AND GUARANTIES. The Agent may, without
notice or demand and without affecting any Borrower's obligations
hereunder, from time to time: (a) take from any Person and hold collateral
(other than the Collateral) for the payment of all or any part of the
Obligations and exchange, enforce or release such collateral or any part
thereof; and (b) accept and hold any endorsement or guaranty of payment of
all or any part of the Obligations and release or substitute any such
endorser or guarantor, or any Person who has given any Lien in any other
collateral as security for the payment of all or any part of the Obliga-
tions, or any other Person in any way obligated to pay all or any part of
the Obligations.
16.6 FEES AND EXPENSES. Each Borrower shall pay to the Agent,
for its benefit and/or the benefit of the Lenders, on demand, all costs and
expenses that any Lender and/or the Agent or SPBC pays or incurs in con-
nection with the negotiation, preparation, consummation, administration,
enforcement and/or termination of this Agreement and the other Loan
Documents, including, without limitation: (a) reasonable in-house and
outside attorneys' and paralegals' fees and disbursements of counsel to
such Lender and/or the Agent and any Participant; (b) costs and expenses
(including reasonable in-house and outside attorneys' and paralegals' fees
and disbursements) for any amendment, supplement, waiver, consent, or
subsequent closing in connection with this Agreement or any Loan Document
and the transactions contemplated thereby; (c) costs and expenses of lien
and title searches, surveys and title insurance; (d) taxes, fees and other
charges for recording the mortgages, filing financing statements and
continuations, and other actions to perfect, protect, and continue the
Agent's Liens for the benefit of the Secured Creditors; (e) sums paid or
incurred to pay any amount or take any action required of any Borrower
under the Loan Documents that such Borrower fails to pay or take; (f) costs
of appraisals required under SECTION 7.5, inspections, and verifications of
the Collateral, including, without limitation, standard per diem fees
charged by the Agent or the Lenders, travel, lodging, and meals for
inspections of the Collateral and any Borrower's operations by the Agent's
and/or the Lenders' agents up to four (4) times per year and whenever an
Event of Default exists; (g) costs and expenses of forwarding loan
proceeds, collecting checks and other items of payment, and establishing
and maintaining the Concentration Accounts; (h) all amounts payable under
Letter of Credit Reimbursement
EX-10.26-109
Agreements and Banker's Acceptance Agreements; (i) costs and expenses of
preserving and protecting the Collateral; and (j) costs and expenses
(including reasonable in-house and outside attorneys' and paralegals' fees
and disbursements) paid or incurred to obtain payment of the Obligations,
enforce the Agent's Liens, for the benefit of the Secured Creditors, sell
or otherwise realize upon the Collateral, and otherwise enforce the
provisions of the Loan Documents, or to defend any claims made or
threatened against the Agent or any Lender arising out of the transactions
contemplated hereby (including without limitation, preparations for and
consultations concerning any such matters). The foregoing shall not be
construed to limit any other provisions of the Loan Documents regarding
costs and expenses to be paid by any Borrower. All of the foregoing costs
and expenses may be paid from the proceeds of Revolving Loans as described
in SECTION 5.6(b).
16.7 NOTICES. Except as otherwise provided herein, all notices,
demands and requests that any party is required or elects to give to any
other shall be in writing, or by a telecommunications device capable of
creating a written record, and any such notice shall become effective (a)
upon personal delivery thereof, including, but not limited to, delivery by
overnight mail and courier service, (b) five (5) days after it shall have
been mailed by United States mail, first class, certified or registered,
with postage prepaid, or (c) in the case of notice by such a
telecommunications device, when properly transmitted, in each case
addressed to the party to be notified as follows:
If to the Agent: BankAmerica Business Credit, Inc.
40 East 52nd Street, 2nd Floor
New York, New York 10022
Attention: Division Manager
Telephone No.: 212/836-5241
Telecopier No.: 212/836-5167
with a copy to: Bank of America National Trust and Savings
Association
10124 Old Grove Road
San Diego, California 92131
Attention: Legal Department
Telephone No.: 619/549-7510
Telecopier No.: 619/549-7518
and with a copy to: Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Alan M. Christenfeld, Esq.
Telephone No.: 212/878-8000
Telecopier No.: 212/878-8375
If to any Borrower: Great Dane Trailers, Inc.
600 East Lathrop Avenue
Savannah, Georgia 31402
Attention: President
Telephone No.:
Telecopier No.: 912/236-0647
EX-10.26-110
with a copy to: Great Dane Holdings, Inc.
2016 North Pitcher Street
Kalamazoo, Michigan 49007
Attention: President
Telephone No.:
Telecopier No.: 616/343-6823
and with copies to: Hutton Ingram Yuzek Gainen
Carroll & Bertolotti
250 Park Avenue, 6th Floor
New York, New York 10177
Attention: Paulette Kendler, Esq.
Telephone No.: 212/907-9615
Telecopier No.: 212/907-9681
Hunter, Maclean, Exley & Dunn, P.C.
P.O. Box 9848
Savannah, Georgia 31412-0048
Attention: John M. Hewson, III, Esq.
Telephone No.: 912/236-0261
Telecopier No.: 912/236-4936
or to such other address as each party may designate for itself by like
notice. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to the
Persons designated above to receive copies shall not adversely affect the
effectiveness of such notice, demand, request, consent, approval, declara-
tion or other communication.
16.8 INDEMNITY. Each Borrower agrees to (i) reimburse the Agent
and the Lenders for any costs and expenses (including, without limitation,
reasonable attorneys' and paralegals' fees and expenses) incurred by the
Agent or any Lender in defending any suit brought against it by such
Borrower or any other Person in connection with the transactions
contemplated by this Agreement, and (ii) indemnify and hold the Agent and
the Lenders and their respective officers, directors, employees, attorneys
and agents (collectively, the "Indemnitees") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever incurred by the Indemnitees, whether direct or indirect, as a
result of or arising from or relating to any proceeding by any Person,
whether threatened or initiated, asserting any claim for legal or equitable
remedy against any Person under any statute or regulation (including,
without limitation, any federal or state securities or commercial laws or
under any common law or equitable cause or otherwise, including any
liability and costs under Environmental Laws or common law principles
arising from or in connection with the past, present or future operations
of such Borrower or its predecessors in interest, or the past, present or
future environmental condition of such Borrower's Property, the presence of
asbestos-containing materials at or on such Property, or the Release or
threatened Release of any contaminant into the environment from such
property), in any way arising from or in connection with the negotiation,
preparation, execution, delivery, enforcement, performance and
administration of this Agreement or any other document executed in
connection herewith, provided that such Borrower shall have no obligation
hereunder with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of any Indemnitee seeking such
indemnification or with respect to a matter determined by a court of
competent jurisdiction in a final judgment against the Agent and the
Lenders
EX-10.26-111
as to which the Borrowers have prevailed. To the extent that the indemnity
set forth in this SECTION 16.8 may be unenforceable because it is violative
of any law or public policy, the applicable Borrower shall pay the maximum
portion which it is permitted to pay under applicable law. Any Indemnitee
will promptly notify the applicable Borrower of the commencement of any
legal proceeding which may give rise to any indemnified liability under the
foregoing indemnity and shall permit such Borrower to participate in the
defense of such Indemnitee in any such proceeding. The foregoing indemnity
shall survive the payment of the Obligations and the termination of this
Agreement. All of the foregoing fees, costs and expenses shall be part of
the Obligations, payable upon demand, and secured by the Collateral.
16.9 WAIVER OF NOTICES. Unless otherwise expressly provided
herein, each Borrower waives presentment, protest and notice of demand or
dishonor and protest as to any instrument, as well as any and all other
notices to which it might otherwise be entitled. No notice to or demand on
either Borrower which the Agent or any Lender may elect to give shall
entitle such Borrower to any or further notice or demand in the same,
similar or other circumstances.
16.10 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and by the Agent, the Lenders and/or the Borrowers in
separate counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement.
16.11 CAPTIONS. The captions contained in this Agreement are for
convenience only, are without substantive meaning and should not be
construed to modify, enlarge, or restrict any provision.
16.12 PARTICIPANT'S SECURITY INTERESTS. If a Participant shall
at any time with the Borrowers' knowledge participate with any Lender in
such Lender's Commitment and Loans and participations in Letters of Credit
and Banker's Acceptances, each Borrower hereby grants to the Agent, for the
benefit of the Secured Creditors, and to such Participant, and the Agent,
for the benefit of the Secured Creditors, and such Participant shall have,
and is hereby given, a continuing Lien on and security interest in any
money, securities and other property of such Borrower in the custody or
possession of the Participant, including the right of set-off, to the
extent of the Participant's participation in the Obligations, and such
Participant shall be deemed to have the same right of set-off to the extent
of such Participant's participation in the Obligations under this Agreement
as it would have if it were a Lender.
16.13 RESTRICTIONS ON ACTIONS BY LENDERS; SHARING OF PAYMENTS.
(a) Each of the Lenders agrees that it shall not, without the express
consent of the Agent, and that it shall, to the extent it is lawfully
entitled to do so, upon the request of the Agent, set-off against the
Obligations, any amounts owing by such Lender to either Borrower or any ac-
counts of either Borrower now or hereafter maintained with such Lender.
Each of the Lenders further agrees that it shall not, unless specifically
requested to do so by the Agent, take or cause to be taken any action,
including, without limitation, the commencement of any legal or equitable
proceedings, to foreclose any Lien on, or otherwise enforce any security
interest in, any of the Collateral, the purpose of which is, or could be,
to give such Lender any preference or priority against the other Lenders
with respect to the Collateral.
(b) Subject to SECTION 5.6(d), if, at any time or times any
Lender shall receive (i) by payment, foreclosure, set-off or otherwise, any
proceeds
EX-10.26-112
of Collateral or any payments with respect to the Obligations of any
Borrower to such Lender arising under, or relating to, this Agreement or
the other Loan Documents, except for any such proceeds or payments received
by such Lender from the Agent pursuant to the terms of this Agreement, or
(ii) payments from the Agent in excess of such Lender's ratable portion of
all such distributions by the Agent, such Lender shall promptly (1) turn
the same over to the Agent, in kind, and with such endorsements as may be
required to negotiate the same to the Agent, or in same day funds, as
applicable, for the benefit of all of the Secured Creditors and for applica-
tion to the Obligations in accordance with the applicable provisions of this
Agreement or (2) purchase, without recourse or warranty, an undivided
interest and participation in the Obligations owed to the other Lenders so
that such excess payment received shall be applied ratably as among the
Lenders in accordance with their Pro Rata Shares; PROVIDED, HOWEVER, that if
all or part of such excess payment received by the purchasing party is
thereafter recovered from it, those purchases of participations shall be
rescinded in whole or in part, as applicable, and the applicable portion of
the purchase price paid therefor shall be returned to such purchasing party,
but without interest except to the extent that such purchasing party is re-
quired to pay interest in connection with the recovery of the excess payment.
16.14 CONCERNING THE COLLATERAL AND THE RELATED LOAN DOCUMENTS.
Each Lender authorizes and directs the Agent to enter into this Agreement
and the other Loan Documents relating to the Collateral for the benefit of
the Secured Creditors. Each Lender agrees that any action taken by the
Agent or Majority Lenders in accordance with the terms of this Agreement or
the other Loan Documents relating to the Collateral, and the exercise by
the Agent or the Majority Lenders of their respective powers set forth
therein or herein, together with such other powers that are reasonably
incidental thereto, shall be authorized and binding upon all of the
Lenders.
16.15 JOINT AND SEVERAL LIABILITY. The liability of the
Borrowers for all of the Obligations shall be joint and several regardless
of which Borrower actually receives loans or other extensions of credit
hereunder or the amount of such loans received or the manner in which
Lender accounts for such loans or other extensions of credit or on its
books and records. Each Borrower's Obligations with respect to Term Loans
or Revolving Loans made to it or Letters of Credit or Banker's Acceptances
issued for its account, and related fees, costs and expenses, and each
Borrower's Obligations arising as a result of the joint and several
liability of the Borrowers hereunder, with respect to Term Loans or
Revolving Loans made to the other Borrowers hereunder or Letters of Credit
or Banker's Acceptances issued for the account of the other Borrowers
hereunder, together with the related fees, costs and expenses, shall be
separate and distinct obligations, all of which are primary obligations of
each Borrower.
Each Borrower's Obligations arising as a result of the joint and
several liability of the Borrowers hereunder with respect to loans or other
extensions of credit made to the other Borrowers hereunder shall, to the
fullest extent permitted by law, be unconditional irrespective of (i) the
validity of enforceability, avoidance or subordination of the Obligations
of the other Borrowers or of any promissory note or other document evidenc-
ing all of any part of the Obligations of the other Borrowers, (ii) the
absence of any attempt to collect the Obligations from any of the other
Borrowers, any other guarantor, or any other security therefor, or the
absence of any other action to enforce the same, (iii) the waiver, consent,
extension, forbearance or granting of any indulgence by the Lenders with
respect to any provision of any instrument evidencing the Obligations of
the other
EX-10.26-113
Borrowers, or any part thereof, or any other agreement now or hereafter
executed by the other Borrowers and delivered to the Lenders, (iv) the
failure by the Agent to take any steps to perfect and maintain its security
interest in, or to preserve its rights to, any security or collateral for
the Obligations of the other Borrowers, (v) the Lenders' election, in any
proceeding instituted under the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a
security interest by the other Borrowers, as debtor-in-possession under
Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any
portion of the Lenders' claim(s) for repayment of the Obligations of the
other Borrowers under Section 502 of the Bankruptcy Code, or (viii) any
other circumstance which might constitute a legal or equitable discharge or
defense of a guarantor or of the other Borrowers.
Each Borrower hereby irrevocably agrees that it will not bring
any "claims" (as defined in Section 101(5) of the Bankruptcy Code) against
any other Borrower to which such Borrower is or would at any time be
otherwise entitled by virtue of its obligations under this Agreement or
under any of the Loan Documents, including, without limitation, any right
of subrogation (whether contractual, under Section 509 of the Bankruptcy
Code or otherwise), reimbursement, contribution, exoneration or other
similar right against such other Borrowers, until such time as all of the
Obligations have been satisfied in full and this Agreement shall have
terminated in accordance with its terms.
Upon any Event of Default, the Agent may, at its sole election,
proceed directly and at once, without notice, against any Borrower to
collect and recover the full amount, or any portion of the Obligations,
without first proceeding against any other Borrower or any other Person, or
against any security or collateral for the Obligations. Each Borrower
consents and agrees that neither the Agent nor any Lender shall be under
any obligation to marshall any assets in favor of such Borrower or against
or in payment of any or all of the Obligations.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
EX-10.26-114
IN WITNESS WHEREOF, the parties have entered into this Agreement
as of the date first above written.
GREAT DANE TRAILERS, INC.
By: /s/ Thomas W. Horan
---------------------------------
Senior Vice President, Finance
GREAT DANE LOS ANGELES, INC.
By: /s/ Thomas W. Horan
-------------------------------
Senior Vice President, Finance
GREAT DANE TRAILERS TENNESSEE, INC.
By: /s/ Thomas W. Horan
-------------------------------
Senior Vice President, Finance
BANKAMERICA BUSINESS CREDIT, INC.,
as the Agent
By: /s/ Ira Mermelstein
-------------------------------
Vice President
Term Loan Commitment BANKAMERICA BUSINESS CREDIT, INC.,
$25,000,000 as a Lender
(subject to the provisions
of the definition of "Term By: /s/ Ira Mermelstein
Loan Commitment" contained -------------------------------
in SECTION 1.1) Vice President
Revolving Credit
Commitment $75,000,000
(subject to the provisions 40 East 52nd Street, 2nd Fl.
of the definition of New York, New York 10022
"Revolving Credit Commitmen Attention: Division Manager
contained in SECTION 1.1) Telephone No.: (212) 836-5241
Pro Rata Share 50% Telecopy No.: (212) 836-5167
EX-10.26-115
Term Loan Commitment NATIONSBANK OF GEORGIA, N.A.
$16,666,650
(subject to the provisions
of the definition of "Term
Loan Commitment" contained By: /s/ Robert Moore
in SECTION 1.1) -------------------------------
Revolving Credit Vice President
Commitment $50,000,000
(subject to the provisions 600 Peachtree Street
of the definition of 13th Floor
"Revolving Credit Commitmen Atlanta, Georgia 30308
contained in SECTION 1.1) Attention: Jeff Guldner
Pro Rata Share 33.3333% Telephone No.: (404) 607-5377
Telecopy No.: (404) 607-6437
EX-10.26-115
Term Loan Commitment SANWA BUSINESS CREDIT CORPORATION
$8,333,350
(subject to the provisions
of the definition of "Term
Loan Commitment" contained By: /s/ Peter Skavla
in SECTION 1.1) -------------------------------
Revolving Credit Vice President
Commitment $25,000,000
(subject to the provisions 500 Glenpointe Centre West
of the definition of Teaneck, New Jersey 07666-6802
"Revolving Credit Commitment" Attention: Oleh Szczupak,
contained in SECTION 1.1) Account Manager
Pro Rata Share 16.6667% Telephone No.: (201) 836-4006
Telecopy No.: (201) 836-4744
EX-10.26-117
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Dated as of February 14, 1995
Among
GREAT DANE TRAILERS, INC.
GREAT DANE LOS ANGELES, INC.
GREAT DANE TRAILERS TENNESSEE, INC.
AS BORROWERS
and
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS LENDERS
and
BANKAMERICA BUSINESS CREDIT, INC.
AS AGENT
EX-10.26-118
TABLE OF CONTENTS
Page
----
1. INTERPRETATION OF THIS AGREEMENT . . . . . . . . . . . . . . . . . . 2
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . 30
1.3 Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2. LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.1 Term Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.2 Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . 34
2.3 Over Advances . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.4 Lenders' Failure to Perform . . . . . . . . . . . . . . . . . . 41
3A. LETTER OF CREDIT SUBFACILITY . . . . . . . . . . . . . . . . . . . . 41
3A.1 Agreement to Issue. . . . . . . . . . . . . . . . . . . . . . . 41
3A.2 Amounts; Tenor. . . . . . . . . . . . . . . . . . . . . . . . . 41
3A.3 Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3A.4 Issuance of Letters of Credit . . . . . . . . . . . . . . . . . 43
3A.5 Letter of Credit Reimbursement Obligations; Duties
of Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3A.6 Participations. . . . . . . . . . . . . . . . . . . . . . . . . 44
3A.7 Payment of Letter of Credit Reimbursement
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3A.8 Compensation for Letters of Credit. . . . . . . . . . . . . . . 47
3A.9 Indemnification; Exoneration. . . . . . . . . . . . . . . . . . 47
3A.10 Supporting Letter of Credit; Cash Collateral . . . . . . . . . 48
3B. BANKER'S ACCEPTANCE SUBFACILITY. . . . . . . . . . . . . . . . . . . 49
3B.1 Agreement to Issue. . . . . . . . . . . . . . . . . . . . . . . 49
3B.2 Amounts; Tenor. . . . . . . . . . . . . . . . . . . . . . . . . 49
3B.3 Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3B.4 Issuance of Banker's Acceptances. . . . . . . . . . . . . . . . 51
3B.5 Banker's Acceptance Reimbursement Obligations;
Duties of Issuer. . . . . . . . . . . . . . . . . . . . . . . . 52
3B.6 Participations. . . . . . . . . . . . . . . . . . . . . . . . . 52
3B.7 Payment of Banker's Acceptance Reimbursement
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 54
3B.8 Compensation for Banker's Acceptances . . . . . . . . . . . . . 55
3B.9 Indemnification; Exoneration. . . . . . . . . . . . . . . . . . 55
4. INTEREST AND FEES. . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.1 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.2 Maximum Interest Rate . . . . . . . . . . . . . . . . . . . . . 56
4.3 Closing Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.4 Letter of Credit Fee. . . . . . . . . . . . . . . . . . . . . . 57
4.4A Banker's Acceptance Fees. . . . . . . . . . . . . . . . . . . . 58
4.5 Commitment Fee. . . . . . . . . . . . . . . . . . . . . . . . . 58
4.6 Increased Capital; Increased Costs. . . . . . . . . . . . . . . 58
4.7 Fees Not Interest; Fully Earned . . . . . . . . . . . . . . . . 60
4.8 Funding Indemnities . . . . . . . . . . . . . . . . . . . . . . 60
4.9 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
4.10 Unavailability of Eurodollar Rate Loans . . . . . . . . . . . . 62
4.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5. PAYMENTS AND PREPAYMENTS . . . . . . . . . . . . . . . . . . . . . . 65
5.1 Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . 65
EX-10.26-119
5.2 Reduction or Termination of Revolving Credit
Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . 65
5.3 Repayment of Term Loans . . . . . . . . . . . . . . . . . . . . 66
5.4 Voluntary Prepayments of Term Loans . . . . . . . . . . . . . . 66
5.5 Mandatory Prepayments of the Term Loans . . . . . . . . . . . . 66
5.6 Manner, Time and Apportionment of Payments. . . . . . . . . . . 67
5.7 Indemnity for Returned Payments . . . . . . . . . . . . . . . . 69
6. AGENT'S AND LENDERS' BOOKS AND RECORDS; . . . . .
MONTHLY STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.1 Agent's and Lenders' Books and Records; Monthly
Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7. COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.1 Grant of Security Interest. . . . . . . . . . . . . . . . . . . 70
7.2 Perfection and Protection of Security Interest. . . . . . . . . 72
7.3 Location of Collateral. . . . . . . . . . . . . . . . . . . . . 73
7.4 Title to, Liens on, and Sale and Use of Collateral. . . . . . . 73
7.5 Appraisals. . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.6 Access and Examination. . . . . . . . . . . . . . . . . . . . . 74
7.7 Collateral Reporting. . . . . . . . . . . . . . . . . . . . . . 74
7.8 Collections and Concentration Account Arrangements. . . . . . . 75
7.9 Accounts; Inventory . . . . . . . . . . . . . . . . . . . . . . 76
7.10 Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.11 Documents, Instruments, and Chattel Paper . . . . . . . . . . . 78
7.12 Right to Perform or Cure. . . . . . . . . . . . . . . . . . . . 78
7.13 Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . 79
7.14 The Agent's and the Lenders' Rights, Duties and
Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 79
8. BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES. . . . . . . . . . 80
8.1 Books and Records . . . . . . . . . . . . . . . . . . . . . . . 80
8.2 Financial Information . . . . . . . . . . . . . . . . . . . . . 80
8.3 Notices to the Agent. . . . . . . . . . . . . . . . . . . . . . 83
9. GENERAL WARRANTIES AND REPRESENTATIONS . . . . . . . . . . . . . . . 86
9.1 Authorization, Validity, and Enforceability of this
Agreement and the Loan Documents. . . . . . . . . . . . . . . . 86
9.2 Validity and Priority of Security Interest. . . . . . . . . . . 87
9.3 Organization and Qualification. . . . . . . . . . . . . . . . . 87
9.4 Corporate Name; Prior Transactions; Business
Conducted . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.5 Subsidiaries and Affiliates . . . . . . . . . . . . . . . . . . 87
9.6 Financial Statements and Projections. . . . . . . . . . . . . . 87
9.7 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . 88
9.8 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.9 Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
9.10 Title to Property . . . . . . . . . . . . . . . . . . . . . . . 89
9.11 Real Property; Leases . . . . . . . . . . . . . . . . . . . . . 89
9.12 Proprietary Rights. . . . . . . . . . . . . . . . . . . . . . . 89
9.13 Trade Names . . . . . . . . . . . . . . . . . . . . . . . . . . 90
9.14 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 90
9.15 Restrictive Agreements. . . . . . . . . . . . . . . . . . . . . 90
9.16 Labor Disputes. . . . . . . . . . . . . . . . . . . . . . . . . 90
9.17 Environmental, Health and Safety Laws . . . . . . . . . . . . . 90
EX-10.26-120
9.18 No Violation of Law . . . . . . . . . . . . . . . . . . . . . . 92
9.19 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.20 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
9.21 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
9.22 Investment Company Act. . . . . . . . . . . . . . . . . . . . . 94
9.23 Margin Stock. . . . . . . . . . . . . . . . . . . . . . . . . . 94
9.24 Broker's Fees . . . . . . . . . . . . . . . . . . . . . . . . . 95
9.25 No Material Adverse Change. . . . . . . . . . . . . . . . . . . 95
9.26 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 95
9.27 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10. AFFIRMATIVE AND NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . 95
10.1 Taxes and Other Obligations . . . . . . . . . . . . . . . . . . 95
10.2 Corporate Existence and Good Standing . . . . . . . . . . . . . 97
10.3 Compliance with Law and Agreements. . . . . . . . . . . . . . . 98
10.4 Maintenance of Property . . . . . . . . . . . . . . . . . . . . 98
10.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
10.6 Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . .100
10.7 Environmental, Health and Safety Laws . . . . . . . . . . . . .100
10.8 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101
10.9 Mergers, Consolidations or Sales. . . . . . . . . . . . . . . .102
10.10 Capital Changes. . . . . . . . . . . . . . . . . . . . . . . .103
10.11 Transactions Affecting Collateral, Real Estate or
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . .103
10.12 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . .103
10.13 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104
10.14 Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . .104
10.15 Transactions with Affiliates . . . . . . . . . . . . . . . . .104
10.16 Investment Banking and Finder's Fees . . . . . . . . . . . . .105
10.17 Business Conducted . . . . . . . . . . . . . . . . . . . . . .105
10.18 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . .105
10.19 Sale and Leaseback Transactions. . . . . . . . . . . . . . . .105
10.20 New Subsidiaries . . . . . . . . . . . . . . . . . . . . . . .106
10.21 Restricted Investments . . . . . . . . . . . . . . . . . . . .106
10.22 [Intentionally Omitted]. . . . . . . . . . . . . . . . . . . .106
10.23 [Intentionally Omitted]. . . . . . . . . . . . . . . . . . . .106
10.24 Minimum Interest Coverage. . . . . . . . . . . . . . . . . . .106
10.25 Fixed Maturity Coverage. . . . . . . . . . . . . . . . . . . .106
10.26 Intercompany Loans . . . . . . . . . . . . . . . . . . . . . .107
10.27 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . .109
10.28 No Amendment of Charter, By-Laws . . . . . . . . . . . . . . .109
10.29 Further Assurances . . . . . . . . . . . . . . . . . . . . . .109
10.30 Use of Proceeds for Shareholder Loans. . . . . . . . . . . . .109
10.31 Delivery of Acknowledgement Copies of UCC-3's. . . . . . . . .109
10.32 Revenue Department Ruling and Tax Opinion. . . . . . . . . . .109
11. CONDITIONS OF LENDING. . . . . . . . . . . . . . . . . . . . . . . .109
11.1 Conditions Precedent to Effectiveness of Agreement,
Making of Initial Revolving Loans and Issuance of Letters
of Credit and Banker's Acceptances on the Effective Date
and Making of Term Loans on the Initial Term Loan Funding
Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109
11.2 Conditions Precedent to Making of Term Loans on each
Term Funding Date . . . . . . . . . . . . . . . . . . . . . . .111
EX-10.26-121
11.3 Conditions Precedent to Each Loan, Letter of Credit
and Banker's Acceptance . . . . . . . . . . . . . . . . . . . .112
12. DEFAULT; REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . .113
12.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . .113
12.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . .117
13. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . .119
13.1 Term and Termination. . . . . . . . . . . . . . . . . . . . . .119
14. WAIVER; AMENDMENTS; ASSIGNMENTS; SUCCESSORS. . . . . . . . . . . . .119
14.1 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . .119
14.2 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . .120
14.3 Assignments; Participations . . . . . . . . . . . . . . . . . .120
14.4 Successors and Assigns. . . . . . . . . . . . . . . . . . . . .124
15. THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124
15.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . .124
15.2 Nature of Duties. . . . . . . . . . . . . . . . . . . . . . . .125
15.3 Rights, Exculpation, Etc. . . . . . . . . . . . . . . . . . . .125
15.4 Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . . .126
15.5 Indemnification . . . . . . . . . . . . . . . . . . . . . . . .126
15.6 BankAmerica Individually. . . . . . . . . . . . . . . . . . . .127
15.7 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . .127
15.8 Collateral Matters. . . . . . . . . . . . . . . . . . . . . . .127
15.9 Agency for Perfection . . . . . . . . . . . . . . . . . . . . .129
16. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . .129
16.1 Cumulative Remedies; No Prior Recourse to Collateral
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129
16.2 Severability. . . . . . . . . . . . . . . . . . . . . . . . . .130
16.3 Governing Law; Choice of Forum; Service of Process;
Jury Trial Waiver . . . . . . . . . . . . . . . . . . . . . . .130
16.4 Survival of Representations and Warranties. . . . . . . . . . .131
16.5 Other Security and Guaranties . . . . . . . . . . . . . . . . .131
16.6 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . .131
16.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .132
16.8 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . .133
16.9 Waiver of Notices . . . . . . . . . . . . . . . . . . . . . . .134
16.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . .134
16.11 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . .134
16.12 Participant's Security Interests . . . . . . . . . . . . . . .135
16.13 Restrictions on Actions by Lenders; Sharing of
Payments . . . . . . . . . . . . . . . . . . . . . . . . . . .135
16.14 Concerning the Collateral and the Related Loan
Documents. . . . . . . . . . . . . . . . . . . . . . . . . . .136
16.15 Joint and Several Liability. . . . . . . . . . . . . . . . . .136
EX-10.26-122
EXHIBITS
Exhibit A -- Form of Notice of Borrowing of
Revolving Loans
Exhibit B -- Form of Notice of Borrowing of Term
Loans
Exhibit C-1 -- Form of Amendment to Term Note
Exhibit C-2 -- Form of Term Note - Term Funding Dates
Exhibit D -- List of Closing Documents
Exhibit E -- Form of Assignment and Acceptance
Exhibit F -- Form of Notice of Conversion/Continuation
EX-10.26-123
SCHEDULES
Schedule 1.1-A -- Financial Statements (Sections 1.1 and 9.6(a))
Schedule 1.1-B -- Pro Forma Balance Sheet (Sections 1.1, 9.6(c)
and 9.9)
Schedule 1.1-C -- Borrowers' Latest Projections (Sections 1.1
and 9.6(b))
Schedule 1.1-D -- Permitted Liens (Sections 1.1 and 7.4)
Schedule 1.1-E -- Mortgaged Property (Sections 1.1 and 9.10)
Schedule 1.1-F -- Borrowers' Proprietary Rights (Sections 1.1
and 9.12)
Schedule 1.1-G -- Certain Work-in-Process
Schedule 7.1(a) -- Excluded Property
Schedule 7.1(b) -- Indianapolis Parcel
Schedule 7.3-A -- Location of Borrowers' Offices and
Collateral (Sections 7.3 and 9.11)
Schedule 7.3-B -- Locations Leased or Subleased by
Borrowers (Sections 7.3 and 9.11)
Schedule 9.3-A -- Borrowers' States of Incorporation
Schedule 9.3-B -- States Where Borrowers are Qualified to do
Business
Schedule 9.4 -- Prior Corporate Names Used and
Participation in any Merger,
Consolidation or Acquisition
Transactions
Schedule 9.5 -- Borrowers' Subsidiaries and Other Affiliates
Schedule 9.5-A -- Subsidiaries' States of Incorporation
Schedule 9.5-B -- States Where Subsidiaries are Qualified to do
Business
Schedule 9.7-A -- Capitalization of Borrowers
Schedule 9.7-B -- Ownership of Borrowers' Stock
Schedule 9.14 -- Pending or Threatened Litigation
Schedule 9.16 -- Labor Contracts and Disputes
Schedule 9.20-A -- ERISA Plans
EX-10.26-124
Schedule 9.20-J -- Employer Welfare Benefit Plans
Schedule 9.20-P -- Multiemployer Plans
Schedule 10.11 -- Colonial Parcel