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EXHIBIT 99.7
REVOLVING CREDIT AGREEMENT
Dated as of May 20, 1994
among
WYMAN-GORDON RECEIVABLES CORPORATION
THE FINANCIAL INSTITUTIONS PARTIES HERETO (the "Banks"),
and
SHAWMUT BANK, N.A.
as Issuing Bank,
as Facility Agent
and
as Collateral Agent.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Certain Definitions 1
Section 1.02 Accounting Terms 1
Section 1.03 Other Terms 2
Section 1.04 Computation of Time Periods 2
ARTICLE II
THE REVOLVING LOAN FACILITY
Section 2.01 Revolving Loan Facility 2
Section 2.02 Making of Revolving Loans 2
Section 2.03 Notice of Borrowings 3
Section 2.04 Disbursement of Funds 4
Section 2.05 Conversion and Continuation of Borrowings 5
Section 2.06 Termination, Reduction and Renewal of
Commitments 6
Section 2.07 Mandatory and Voluntary Prepayments and
Mandatory Reductions in Aggregate Net
Outstandings 8
Section 2.08 Revolving Loans in Connection with
Letters of Credit 9
Section 2.09 Additional Banks, Increase in Facility
Amount 10
Section 2.10 Replacement of Certain Banks 11
ARTICLE III
THE LETTER OF CREDIT FACILITY
Section 3.01 Obligation to Issue; Renewal of L/C
Facility 13
Section 3.02 Types and Amounts 13
Section 3.03 Conditions 14
Section 3.04 Issuance of Letters of Credit 14
Section 3.05 Reimbursement Obligations 18
Section 3.06 Payments under the Letters of Credit 19
Section 3.07 Indemnification; Exoneration 22
ARTICLE IV
INTEREST, FEES AND OTHER PAYMENT TERMS
Section 4.01 Interest 24
Section 4.02 Fees 24
Section 4.03 Payments and Computations 25
Section 4.04 Yield Protection 26
Section 4.05 Illegality; Unavailability 28
Section 4.06 Indemnity 29
Section 4.07 Pro Rata Treatment 29
Section 4.08 Taxes 30
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ARTICLE V
CONDITIONS OF REVOLVING LOANS AND LETTERS OF CREDIT
Section 5.01 Conditions Precedent to Initial Borrowing
or Letter of Credit 32
Section 5.02 Conditions Precedent to Each Revolving
Loan and Letter of Credit 34
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties of WGRC 35
ARTICLE VII
AFFIRMATIVE COVENANTS
Section 7.01 Reports, Certificates; Other Information 39
Section 7.02 Inspection 41
Section 7.03 Books and Records of WGRC 42
Section 7.04 Corporate Existence 43
Section 7.05 Compliance with Laws 43
Section 7.06 Obligations and Taxes 43
Section 7.07 Facility Documents 43
Section 7.08 Location of Records 43
Section 7.09 Separate Corporate Existence 43
ARTICLE VIII
NEGATIVE COVENANTS
Section 8.01 Liens, Sales of Collateral 45
Section 8.02 Indebtedness 46
Section 8.03 Minimum Net Worth 46
Section 8.04 Guarantees 46
Section 8.05 Limitation on Investments 46
Section 8.06 Limitation on Transactions with
Affiliates 46
Section 8.07 Facility Documents 47
Section 8.08 Charter and By-Laws 47
Section 8.09 Lines of Business 47
Section 8.10 Bank Accounts 47
Section 8.11 Lock-Box Banks; Change in Payment
Instructions to Obligors 47
Section 8.12 Accounting Treatment 48
Section 8.13 ERISA Matters 48
Section 8.14 Merger, Consolidation, etc. 48
ARTICLE IX
SECURITY INTEREST; ADMINISTRATION AND COLLECTION OF RECEIVABLES
Section 9.01 Grant of Security Interest 48
Section 9.02 Continuing Liability of WGRC 50
Section 9.03 Collection of Receivables 50
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Section 9.04 Responsibilities of WGRC 52
Section 9.05 Further Action Evidencing Security
Interest 52
Section 9.06 Applications of Collections 53
Section 9.07 Administration of Collection Account
Prior to the Liquidation Period 53
Section 9.08 Administration of Collection Account
During the Liquidation Period 55
Section 9.09 Remittances and Investment of Funds 57
ARTICLE X
TERMINATION; REMEDIES; INDEMNIFICATION
Section 10.01 Termination; Remedies 57
Section 10.02 Binding Effect 58
Section 10.03 Indemnities by WGRC 58
ARTICLE XI
THE AGENTS
Section 11.01 Authorization and Action 61
Section 11.02 Nature of Agents' Duties 61
Section 11.03 UCC Filings 61
Section 11.04 Agent's Reliance, Etc 61
Section 11.05 Agent and Affiliates 62
Section 11.06 Credit Decision 63
Section 11.07 Indemnification 63
Section 11.08 Successor Agent 63
Section 11.09 Direction by the Banks 64
Section 11.10 Notice of Liquidation Events 64
Section 11.11 Duty of Care 65
Section 11.12 Delegation of Agency 65
ARTICLE XII
MISCELLANEOUS
Section 12.01 Amendments, Etc 66
Section 12.02 No Waiver; Remedies 67
Section 12.03 Successors and Assigns; Assignment;
Participations 67
Section 12.04 GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF PERSONAL SERVICE AND VENUE;
WAIVER OF JURY TRIAL 68
Section 12.05 Notices 69
Section 12.06 Survival of Agreement 69
Section 12.07 Expenses; Indemnification 70
Section 12.08 Confidentiality 70
Section 12.09 No Recourse 71
Section 12.10 No Proceedings 72
Section 12.11 Execution in Counterparts; Severability 73
Section 12.12 Entire Agreement 74
Section 12.13 Exhibits and Schedules 75
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ANNEXES, EXHIBITS, AND SCHEDULES
Annex I Defined Terms
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EXECUTION COPY
REVOLVING CREDIT AGREEMENT
Dated as of May 20, 1994
This REVOLVING CREDIT AGREEMENT (the "Agreement"), dated
as of May 20, 1994, is entered into by and among Wyman-Gordon
Receivables Corporation, a Delaware corporation (hereinafter
"WGRC"), the financial institutions listed on the signature pages
hereof (the "Banks"), and Shawmut Bank, N.A. ("Shawmut"), in its
separate capacities as the issuing bank hereunder (the "Issuing
Bank"), as collateral agent for the Banks (in such capacity, the
"Collateral Agent") and as facility agent for the Banks (in such
capacity, the "Facility Agent").
W I T N E S S E T H:
WHEREAS, Wyman-Gordon Company, a Massachusetts
corporation ("Wyman"), and certain consolidated subsidiaries of
Wyman own all of the issued and outstanding capital stock of WGRC;
and
WHEREAS, the regular business activities of WGRC consists
and/or will consist of the purchase of accounts receivable and
certain related assets from Wyman and from certain other
consolidated subsidiaries of Wyman (collectively, the "Sellers")
and other activities incidental thereto; and
WHEREAS, WGRC, in order to finance its purchases of
receivables and other assets from the Sellers, has entered into
this Agreement whereby the Banks will, subject to the terms and
conditions set forth herein, agree to make Revolving Loans and to
issue and/or participate in letters of credit for the account of
WGRC;
NOW THEREFORE, in consideration of the foregoing premises
and for other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Definitions. For all purposes of
this Agreement, except as otherwise specifically provided herein,
capitalized terms used in this Agreement without definition
(including its preamble and recitals) shall have the meanings
ascribed to such terms in Annex I hereto, the terms of which are
incorporated by reference herein and made a part hereof.
SECTION 1.02. Accounting Terms. Under this Agreement,
all accounting terms not specifically defined herein shall be
interpreted, all accounting determinations made and all financial
statements prepared in accordance with GAAP.
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SECTION 1.03. 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. The words "herein,"
"hereof," and "hereunder" and other words of similar import refer
to this Agreement as a whole, including the exhibits and schedules
hereto, as the same may from time to time be amended or
supplemented and not to any particular section, subsection, or
clause contained in this Agreement, and all references to Sections,
Exhibits and Schedules shall mean, unless the context clearly
indicates otherwise, the Sections hereof and the Exhibits and
Schedules attached hereto, the terms of which Exhibits and
Schedules are hereby incorporated into this Agreement. Whenever
appropriate, in the context, terms used herein in the singular also
include the plural, and vice versa.
SECTION 1.04. Computation of Time Periods. In this
Agreement, in the computation of a period of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding."
ARTICLE II
THE REVOLVING LOAN FACILITY
SECTION 2.01. Revolving Loan Facility. (a) Subject to
the terms and conditions and in reliance upon the representations
and warranties hereinafter set forth, each Bank severally agrees,
at any time and from time to time after the Effective Date until
the earlier of the Termination Date and the termination of the
Commitment of such Bank in accordance with the terms hereof, to
make a loan or loans (each such loan, a "Revolving Loan" and,
collectively, the "Revolving Loans"), in an amount such that the
aggregate amount of Revolving Loans made by such Bank at any time
outstanding shall not exceed (i) the Commitment set forth opposite
its name on Schedule 2.02, as the same may be reduced from time to
time pursuant to Section 2.06, minus (ii) such Bank's Pro Rata
Share of the outstanding face amount of any Letters of Credit. In
addition, the Banks shall not be required to make any Revolving
Loan at any time if, after giving effect to such Revolving Loans,
the Aggregate Net Outstandings would exceed the lesser of (i) the
Facility Amount or (ii) the Base Amount as determined by reference
to the most recent Daily Report delivered by the Servicer to the
Facility Agent in accordance with Article IX hereof.
SECTION 2.02. Making of Revolving Loans. (a) Each
Revolving Loan shall be made as part of a Borrowing consisting of
Revolving Loans made by the Banks ratably in accordance with their
respective Pro Rata Shares and each such Borrowing shall, at the
option of WGRC, be either a Base Rate Borrowing or a Eurodollar
Borrowing; provided, however, that the failure of any Bank to make
any Revolving Loan shall not in itself relieve any other Bank of
its obligation to make Revolving Loans hereunder (it being
understood, however, that no Bank shall be responsible or liable
for the failure of any other Bank to make any Revolving Loan
required to be made by such other Bank). The Revolving Loans
comprising each Borrowing shall be in an aggregate amount that is
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equal to (i) in the case of any Base Rate Borrowing, $1,000,000 or
an integral multiple of $500,000 in excess thereof and (ii) in the
case of any Eurodollar Borrowing, $3,000,000 or an integral
multiple of $1,000,000 in excess thereof; provided, however, that
notwithstanding the foregoing numerical requirements, WGRC may at
any time request a Base Rate Borrowing in an aggregate principal
amount equal to the excess of (i) the lesser of the Facility Amount
or the Base Amount over (ii) the sum of the Aggregate Loan Amount
and the Aggregate L/C Amount then in effect and the Banks shall,
subject to the satisfaction of the other terms and conditions
hereunder, make available the Revolving Loans comprising such Base
Rate Borrowing.
(b) WGRC's obligations to pay the principal of and
interest on all of the Revolving Loans made by each Bank shall be
evidenced by a promissory note payable to each such Bank
substantially in the form of Exhibit 2.02(b) hereto (each, a
"Revolving Note" and collectively, the "Revolving Notes") which
Revolving Note shall be dated the Effective Date and be in a stated
principal amount equal to such Bank's Commitment. The Revolving
Notes will mature on the Final Collection Date and be otherwise
entitled to the benefits of this Agreement. Notwithstanding the
stated principal amount of any Revolving Note, the aggregate
outstanding principal amount of the Revolving Loans made by any
Bank at any time shall be the aggregate principal amount owing on
such Bank's Revolving Note at such time. Each Bank shall and is
hereby authorized to record on the grid attached to its Revolving
Note (or, alternatively, in its internal books and records) the
date and amount of each Revolving Loan made by the Banks, the
interest rate and Interest Period applicable thereto and each
repayment thereof; and such books and records shall, as between
WGRC and such Bank, absent manifest error, constitute prima facie
evidence of the accuracy of the information contained therein.
Failure by any Bank to so record any Revolving Loan made by it or
any payment thereon shall not affect the obligations of WGRC under
this Agreement or under the Revolving Notes and shall not adversely
affect such Bank's rights under this Agreement with respect to the
repayment thereof.
SECTION 2.03. Notice of Borrowings. Whenever WGRC
wishes for the Banks to make Revolving Loans, WGRC shall give the
Facility Agent written or telecopy notice, promptly confirmed by
telephone (or telephone notice promptly confirmed in writing or by
telecopy) (a) in the case of a Base Rate Borrowing, not later than
4:00 p.m., Boston time, two Business Days prior to such proposed
Borrowing, and (b) in the case of a Eurodollar Borrowing, not later
than 1:00 p.m., Boston time, three Business Days before such
proposed Borrowing (a copy of which notice of a Eurodollar
Borrowing shall be concurrently sent by WGRC to any Bank which does
not maintain a Eurodollar Lending Office in the United States).
Each such notice (each, a "Notice of Borrowing") shall be
substantially in the form attached hereto as Exhibit 2.03, shall be
irrevocable and shall in each case refer to this Agreement and
specify (a) whether the Borrowing then being requested is to be a
Eurodollar Borrowing or a Base Rate Borrowing; (b) the date of such
Borrowing (which shall be a Business Day) and the amount thereof;
and (c) if such Borrowing is to be a Eurodollar Borrowing, the
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Interest Period with respect thereto. If no election as to the
Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be a Base Rate Borrowing. If no Interest
Period with respect to any Eurodollar Borrowing is specified in any
such notice, then WGRC shall be deemed to have selected an Interest
Period of one month's duration. The Facility Agent shall promptly
advise the Banks of any notice given pursuant to this Section 2.03
and of each Bank's portion of the requested Borrowing.
SECTION 2.04. Disbursement of Funds. (a) After
receiving notice from the Facility Agent of any Notice of Borrowing
given pursuant to Section 2.03, each Bank shall make a Revolving
Loan in the amount of its pro rata portion of each Borrowing,
ratably according to its Pro Rata Share, on the proposed date
thereof by wire transfer of immediately available funds to the
Facility Agent in Boston, Massachusetts not later than 10:00 a.m.
Boston time, and the Facility Agent shall, by 12:00 noon, Boston
time, make available to WGRC by wire transfer of immediately
available funds the aggregate amount of the Borrowing funded by the
Banks on such date. Unless the Facility Agent shall have received
notice from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Facility Agent such Bank's
portion of such Borrowing, the Facility Agent may (but shall not be
required to) assume that such Bank has made such portion available
to the Facility Agent on the date of such Borrowing in accordance
with this Section 2.04 and the Facility Agent may (but shall not be
required to) make available to WGRC on such date a corresponding
amount in reliance upon such assumption. If and to the extent that
any Bank shall not have made its portion of a Borrowing available
to the Facility Agent and the Facility Agent has made available a
corresponding amount to WGRC, such Bank and WGRC each severally
agrees to repay to the Facility Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to WGRC until the date
such amount is repaid to the Facility Agent at (i) in the case of
WGRC, the rate at which interest accrues on the Revolving Loans
comprising such Borrowing and (ii) in the case of such Bank, (1)
the Federal Funds Rate for such date and the next succeeding
Business Day, and (2) the Federal Funds Rate plus two percent (2%)
for each day thereafter. Any such repayment of principal by WGRC
shall be made from Available Cash pursuant to Section 9.07(c)
hereof. If such Bank shall repay to the Facility Agent such
corresponding amount, such amount shall constitute such Bank's
Revolving Loan as part of such Borrowing for purposes of this
Agreement. Nothing contained in this paragraph shall be construed
to relieve any Bank from its obligations hereunder to make
Revolving Loans to WGRC and to make available to the Facility Agent
its ratable portion of each Borrowing.
(b) In the event that any Bank fails to fund its Pro
Rata Share of any Revolving Loan requested by WGRC which such Bank
is obligated to fund under the terms of this Agreement (the funded
portion of such Revolving Loan being hereinafter referred to as a
"Non-Pro Rata Loan"), then until the earlier of (i) such Bank's
cure of such failure and (ii) the Collection Date, the proceeds of
all amounts thereafter paid or repaid to the Facility Agent by WGRC
and otherwise required to be applied to such Bank's share of any
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other Obligations pursuant to the terms of this Agreement shall,
unless otherwise required to be advanced to the Issuing Bank under
Section 3.06(b)(ii), be advanced to WGRC by the Facility Agent on
behalf of such Bank in the event that WGRC has repaid such amounts
(or shall be retained by the Facility Agent in the event that WGRC
has not repaid such amounts) to cure, in full or in part, such
failure by such Bank, but shall nevertheless be deemed to have been
paid to such Bank in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(1) the foregoing provisions of this Section
2.04(b) shall apply only with respect to the proceeds of
payments of Obligations and shall not affect the
conversion or continuation of any Revolving Loans
hereunder;
(2) a Bank shall be deemed to have cured its
failure to fund its Pro Rata Share of any Revolving Loan
at such time as an amount equal to such Bank's Pro Rata
Share (determined as of the time of the Facility Agent's
receipt of the Notice of Borrowing with respect to such
Revolving Loan) of the requested principal portion of
such Revolving Loan is fully funded to WGRC, whether made
by such Bank itself or by operation of the terms of this
Section 2.04(b); and
(3) any amounts advanced to WGRC under this Section
2.04(b) to cure, in full or in part, any such Bank's
failure to fund its Pro Rata Share of any Revolving Loan,
shall be deemed a part of the same Borrowing as the
applicable Non-Pro Rata Loan.
SECTION 2.05. Conversion and Continuation of Borrowings.
(a) Subject to the terms and conditions set forth in this Section
2.05, WGRC shall have the option: (i) on any day, to convert all or
part of a Base Rate Borrowing to a Eurodollar Borrowing and (ii) on
the last day of any Interest Period of a Eurodollar Borrowing, to
convert all or any part of the Eurodollar Loans comprising such
Borrowing to Base Rate Loans and/or to continue all or any
remaining part of such Eurodollar Loans as a new Eurodollar
Borrowing the Interest Period for which shall commence on the last
day of such prior Interest Period; provided, however, that:
(i) each conversion or continuation shall be made
ratably among the Banks in accordance with their respective
Pro Rata Shares;
(ii) if less than all the outstanding amount of any
Borrowing shall be converted or continued, the aggregate
amount of such Borrowing converted or continued shall be in an
integral multiple of $500,000 for any Base Rate Borrowing and
$1,000,000 for any Eurodollar Borrowing;
(iii) no outstanding Eurodollar Borrowing may be continued
as a Eurodollar Borrowing, and no outstanding Base Rate
Borrowing may be converted into a Eurodollar Borrowing, at any
time that a Liquidation Event or Unmatured Liquidation Event
has occurred and is continuing; and
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(iv) there shall not be more than eight (8) separate
Eurodollar Borrowings outstanding at any one time.
(b) Whenever WGRC wishes to convert and/or continue a
Borrowing under this Section 2.05, WGRC shall give the Facility
Agent written or telecopy notice, promptly confirmed by telephone
(or telephone notice promptly confirmed in writing or by telecopy),
(a) in the case of a conversion to a Base Rate Borrowing, not later
than 1:00 p.m., Boston time, one Business Day prior to the proposed
Conversion/Continuation Date, and (b) in the case of a conversion
to or continuation of a Eurodollar Borrowing, not later than 1:00
p.m., Boston time, three Business Days before such proposed
Conversion/Continuation Date (a copy of which notice of conversion
to or continuation of a Eurodollar Borrowing shall be concurrently
sent by WGRC to any Bank which does not maintain a Eurodollar
Lending Office in the United States). Each such notice ("Notice of
Conversion/Continuation") shall be substantially in the form of
Exhibit 2.05(b) hereto, shall be irrevocable and shall refer to
this Agreement and specify (i) the identity and amount of the
Borrowing that WGRC requests be converted or continued, (ii)
whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or a Base Rate Borrowing, (iii) the proposed
Conversion/Continuation Date (which shall be a Business Day) and
(iv) if such Borrowing is to be converted to or continued as a
Eurodollar Borrowing, the Interest Period with respect thereto. If
no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurodollar Borrowing, WGRC
shall be deemed to have selected an Interest Period of one month's
duration. If WGRC shall not have delivered a timely Notice of
Conversion/Continuation in accordance with this Section 2.05 with
respect to any Borrowing, such Borrowing shall, on the last day of
the Interest Period applicable thereto (unless repaid pursuant to
the terms hereof), automatically be converted into or continued as
a Base Rate Borrowing. The Facility Agent shall promptly advise
the other Banks of any notice given pursuant to this Section 2.05
and of each Bank's portion of any converted or continued Borrowing.
SECTION 2.06. Termination, Reduction and Renewal of
Commitments. (a) The Commitments shall be automatically and
permanently terminated on the Termination Date (prompt notice of
which shall be given by WGRC to the Rating Agency).
(b) Upon at least three Business Days' prior irrevocable
written or telecopy notice to the Facility Agent (promptly
confirmed by telephone), WGRC may at any time terminate in whole or
reduce in part the Commitments, which reduction shall cause a
corresponding irrevocable reduction in the Facility Amount;
provided, however, that (i) each such partial reduction of the
Commitments shall be in an integral multiple of $1,000,000, (ii) no
such partial reduction shall reduce the Facility Amount to an
amount less than $32,000,000, and (iii) no such termination or
reduction shall be made which would reduce the Facility Amount to
an amount less than the Aggregate Net Outstandings outstanding at
such time. Each reduction in the Commitments hereunder shall be
made ratably among the Banks in accordance with their respective
Pro Rata Shares. The Facility Agent shall promptly advise the
Banks and the Rating Agency of any notice given pursuant to this
Section 2.06(b).
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(c) Unless earlier terminated pursuant to Section
2.06(a), the agreement of the Banks to make Revolving Loans and to
issue and/or participate in Letters of Credit hereunder shall be
effective from the Effective Date through the Commitment
Termination Date. No more than ninety days and no less than sixty
days prior to the second anniversary of the Effective Date, and (if
and when applicable) no more than ninety days and no less than
sixty days prior to any successive anniversary of the Effective
Date, WGRC may notify the Facility Agent and the Banks in writing
of its request (each such request an "Extension Request") to extend
the then effective Commitment Termination Date by one additional
year, and each Bank shall notify WGRC in writing whether it agrees
to such extension not later than thirty days after the receipt of
such Extension Request. If (i) the Required Banks give timely
written notice of such agreement in accordance with the immediately
preceding sentence, and (ii) the aggregate Commitments of the Banks
agreeing to such extension is not less than 50% of the aggregate
Commitments in effect on the Effective Date, then the Commitment
Termination Date shall be so extended (and WGRC shall give
concurrent notice thereof to the Rating Agency); provided, however,
that (1) the failure of any Bank to respond to an Extension Request
shall be deemed to constitute such Bank's denial of such Extension
Request; and (2) no Bank which has denied its consent to an
Extension Request (each such Bank, a "Dissenting Bank") shall be
bound by the Required Banks' approval of such Extension Request and
the Commitment of each Dissenting Bank shall expire on the
Commitment Termination Date which was applicable hereunder at the
time of such Bank's receipt of the Extension Request.
(d) WGRC shall have the right, at any time prior to the
expiration of a Dissenting Bank's Commitment, to request that all
or a portion of such Commitment be purchased in accordance with the
provisions of this Section 2.06(d) and Section 2.10 hereof. In the
event that the entire Commitment of any Dissenting Bank is not so
purchased prior to such expiration, then as of the date of such
expiration, but only if and so long as the Liquidation Period has
not commenced in accordance with the terms of this Agreement, and
the transactions described below would not cause a Liquidation
Event or Unmatured Liquidation Event to occur and would not cause
the Aggregate Net Outstandings of any remaining Bank to exceed its
Commitment, (1) the Facility Amount and the aggregate amount of the
Commitments shall be reduced by the aggregate amount of the
expiring and unpurchased Commitments of all such Dissenting Banks,
(2) the Pro Rata Shares of the Banks (including any purchasing
Banks) shall be readjusted accordingly, (3) such Dissenting Bank
shall be released from any further funding obligation with respect
to the Revolving Loans and the Participated Letters of Credit
(whether issued theretofore or thereafter), and the other Banks
shall, up to the amounts of their respective Commitments, be deemed
to have purchased such Dissenting Bank's interest in the
Participated Letters of Credit in accordance with their
recalculated Pro Rata Shares, and (4) WGRC shall direct that, in
accordance with the terms of Section 9.07(c) hereof, but subject to
Section 9.08 hereof, all Available Cash and other funds of WGRC
shall be paid on such day and each Business Day thereafter (x)
first, to each such Dissenting Bank (pro rata, relative to the
amount of all such Dissenting Banks' expiring and unpurchased
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Commitments, in accordance with the amount of each such Dissenting
Bank's expiring and unpurchased Commitment) until all then
outstanding Revolving Loans, all accrued interest thereon and all
amounts due and owing to each such Dissenting Bank hereunder or
under any other Facility Document have been paid in full, and (y)
second, to the Collateral Agent to cash collateralize each such
Dissenting Bank's portion of any outstanding Syndicated Letters of
Credit (unless WGRC shall have arranged for the surrender or
replacement of such Letter of Credit or made such other
arrangements in respect thereof as shall be mutually satisfactory
to WGRC, such Dissenting Bank and the Facility Agent). To the
extent that WGRC may borrow Revolving Loans under this Agreement
following the expiration of such Dissenting Banks' Commitments,
WGRC agrees to so borrow and apply the funds obtained thereby to
the payment of the amounts described above. Upon the purchase
and/or expiration of any Dissenting Bank's Commitment in accordance
with the foregoing and payment in full of the amounts described
above, such Dissenting Bank shall cease to be a party hereto
(subject to any rights of indemnification which survive the
termination of this Agreement). In the event that the Liquidation
Period commences prior to payment in full of the amounts described
above to any Dissenting Bank, then (1) such Dissenting Bank shall
be deemed to have a Pro Rata Share equal to a fraction, the
numerator of which equals the sum of the amount of outstanding
Revolving Loans owing to such Dissenting Bank plus the amount of
Syndicated Letters of Credit with respect to which such Dissenting
Bank remains liable and which has not yet been cash collateralized
as set forth above, and the denominator of which equals the
aggregate outstanding Revolving Loans and Letters of Credit, (2)
the Pro Rata Shares of all of the other Banks shall be adjusted
accordingly, and (3) all Available Cash and other funds of WGRC
shall thereafter be paid in accordance with the terms of Section
9.08 hereof.
SECTION 2.07. Mandatory and Voluntary Prepayments and
Mandatory Reductions in Aggregate Net Outstandings. (a) On any
date on which the sum of the Aggregate Loan Amount and the
Aggregate L/C Amount exceeds the Base Amount, Available Cash shall
be retained by the Collateral Agent and distributed in accordance
with this Section 2.07(a) unless and until the Aggregate Net
Outstandings are equal to or less than the Base Amount. Any
Available Cash so retained shall, in accordance with Section
2.07(b) below, be either retained in the Collection Account or
remitted on such date to the Banks to prepay or cash collateralize
the Revolving Loans and/or to cash collateralize the outstanding
Letters of Credit (according to the provisions of Section 9.07(b)
hereof) in such amount as shall be necessary so that, after giving
effect to such retention and application or cash collateralization,
the Aggregate Net Outstandings will no longer exceed the Base
Amount. To the extent such Available Cash is not sufficient to
eliminate such excess, Available Cash on each succeeding Business
Day shall continue to be retained and applied by the Collateral
Agent in accordance with the foregoing provisions of this Section
2.07(a) unless and until the Aggregate Net Outstandings no longer
exceed the Base Amount or the Liquidation Period commences, at
which time such Available Cash shall be distributed and applied in
accordance with Section 9.07 or Section 9.08, respectively.
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14
(b) Each mandatory prepayment pursuant to Section
2.07(a) and applicable to Revolving Loans shall be applied first to
all Base Rate Loans then outstanding and second to all Eurodollar
Loans with Interest Periods ending on the date of such mandatory
reduction. To the extent that, after making all applications
pursuant to the immediately preceding sentence, the sum of the
Aggregate Loan Amount and the Aggregate L/C Amount continues to
exceed the Base Amount, then, in such event, all Available Cash
shall be retained in the Collection Account in such amount as shall
be necessary so that, after giving effect to such retention, the
Aggregate Net Outstandings will be less than or equal to the Base
Amount then in effect. Any such Available Cash still so retained
on the last day of the Interest Period for any Eurodollar Loans
shall, up to the amount of the Eurodollar Loans the Interest Period
of which ends on such day, be remitted by the Facility Agent to the
Banks for application against such Eurodollar Loans.
(c) In addition to the foregoing, WGRC may from time to
time, on two Business Days' notice to the Facility Agent, request a
voluntary prepayment of the Revolving Loans by directing the
Facility Agent to remit to the Banks all Available Cash and/or
other funds of WGRC for application against the Revolving Loans
designated for prepayment by WGRC in such notice. Each such notice
of voluntary prepayment shall be binding and irrevocable on WGRC.
(d) All mandatory and voluntary prepayments under this
Section 2.07 shall be without premium or penalty of any kind except
for any indemnification which may be owed in connection with the
prepayment of Eurodollar Loans pursuant to Section 4.06.
SECTION 2.08. Revolving Loans in Connection with Letters
of Credit. Whenever the Banks severally or the Issuing Bank
individually issues a Letter of Credit pursuant to Article III
hereof, each Bank shall, automatically and without further action
of any kind upon the effective date of issuance of such Letter of
Credit, have irrevocably agreed to make a Revolving Loan hereunder
in the event and at such time that such Letter of Credit is
subsequently drawn. In the event of such a draw, all such
Revolving Loans shall comprise Base Rate Borrowings in an amount
equal to the amount of such draw (without regard to the numerical
requirements set forth in Section 2.02(a)), shall be made ratably
by the Banks according to their Pro Rata Shares, shall accrue
interest as provided in Article IV and may be converted, continued,
or repaid according to the other provisions of this Article II.
Upon the making of any such Revolving Loans pursuant to this
Section 2.08, the Aggregate Loan Amount shall automatically
increase by the amount of such Revolving Loans and the Aggregate
L/C Amount shall decrease accordingly. In the event that any
Letter of Credit expires or is surrendered without being drawn (in
whole or in part) then, in such event, the foregoing commitment to
make Revolving Loans shall expire and each of the Aggregate L/C
Amount and the Aggregate Net Outstandings shall automatically
reduce by the amount of the Letter of Credit which is no longer
outstanding.
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SECTION 2.09. Additional Banks; Increase in Facility
Amount. From time to time, WGRC shall have the right, subject to
the terms set forth herein, to request an increase in the Facility
Amount as follows:
(i) WGRC shall first request that the Facility Agent, in
its sole discretion, increase its Commitment in an amount up
to the amount of the requested increase in the Facility
Amount.
(ii) To the extent that the Facility Agent has not
agreed to increase its Commitment by the full amount of the
requested increase in the Facility Amount within fifteen (15)
days of the written request of WGRC, WGRC may request that the
Banks, in their sole discretion, increase their Commitments in
an aggregate amount up to the amount of the requested increase
in the Facility Amount which is remaining after giving effect
to clause (i) above. Any such request shall be made to all
Banks. In the event that more than one Bank so agrees to
increase its Commitment and the aggregate thereof exceeds the
amount of the increase in the Facility Amount requested under
this clause (ii), each such Bank shall receive an additional
Commitment ratably equal to (a) the amount of such Bank's
requested increase in its Commitment times (b) the amount of
the increase in the Facility Amount requested under this
clause (ii) divided by (c) the aggregate amount of the
requested increases in Commitments by the Banks under this
clause (ii).
(iii) To the extent that the Banks have not agreed to
increase their Commitments by the remaining amount of the
requested increase in the Facility Amount within fifteen (15)
days of the written request of WGRC, WGRC shall have the right
to select an additional financial institution to become a
party hereto as a Bank with a Commitment equal to any
remaining requested increase in the Facility Amount, which
Bank is reasonably acceptable to the Facility Agent and is an
Eligible Assignee.
Notwithstanding the foregoing, (a) any increase in the Facility
Amount shall be subject to the prior written confirmation by the
Rating Agency that such increase will not cause the Rating Agency
rating of the Facility, as set forth in the letter described in
Section 5.01(xiv), to be reduced or withdrawn, (b) any increase in
the Facility Amount shall be in an aggregate amount of not less
than $1,000,000, and (c) in no event may the Facility Amount be
increased to an amount in excess of $75,000,000 without the prior
written consent of Banks whose Pro Rata Shares aggregate at least
seventy-five percent (75%) (which consent shall not be unreasonably
withheld). Upon receipt of confirmation from the Rating Agency
and, if necessary, consent from the Required Banks, the Facility
Agent shall promptly notify the Banks and the Collateral Agent of
the increase in the Facility Amount and WGRC, the Agents, the
Issuing Bank, the Banks and, if applicable, each additional Bank
shall enter into an amendment to this Agreement and the other
applicable Facility Documents which shall effectuate such increase
and, if applicable, incorporate each such additional Bank as a Bank
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for all purposes of the Facility Documents and pursuant to which
each such additional Bank shall purchase from each other Bank a
participation interest in the Letters of Credit then outstanding,
which participation interest shall be in a percentage equal to such
additional Bank's or Banks' Pro Rata Share or Shares (as calculated
below). Immediately upon the effectiveness of such amendment, (1)
the Facility Amount shall be increased by the amount of the
additional Commitments; (2) the respective Pro Rata Shares of the
Banks (including the additional Banks, if applicable) shall be
recalculated accordingly; and (3) each additional Bank and/or any
Bank increasing its Commitment shall (x) purchase, by wire transfer
of immediately available funds to the other Banks, its Pro Rata
Share of all outstanding Revolving Loans made by the other Banks
and (y) shall purchase from each other Bank a participation
interest in the Letters of Credit, in each case in an amount
necessary so that the Revolving Loans of all the Banks (including,
if applicable, any additional Bank) and each Bank's obligations in
respect of the Letters of Credit shall be outstanding according to
their respective Pro Rata Shares as the same have been recalculated
pursuant to the preceding provisions of this Section 2.09.
SECTION 2.10. Replacement of Certain Banks. In the
event that any Bank (i) has denied its consent to an Extension
Request pursuant to Section 2.06 hereof, which has been consented
to by the Required Banks, or (ii) requested compensation from WGRC
pursuant to Section 4.04 or Section 4.08 hereof to recover
additional costs or Taxes incurred by such Bank which are not being
incurred generally by the other Banks, (iii) delivered a notice
pursuant to Section 4.05 hereof claiming that such Bank is unable
to make Eurodollar Loans for reasons not generally applicable to
the other Banks, (iv) become unable to honor its Commitment
hereunder because the funding of such Commitment has become
unlawful, or (v) failed to fund its Pro Rata Share of any Revolving
Loan or any draw under a Letter of Credit, then, in any such case,
WGRC may make written demand on such Bank (each such Bank, a
"Departing Bank") (with a copy to the Facility Agent) for such
Departing Bank to assign all of its Revolving Loans and all of its
other rights and obligations under this Agreement as follows:
(i) WGRC shall first request that the Facility Agent, in
its sole discretion, purchase the Commitment, or any portion
thereof, of such Departing Bank.
(ii) To the extent that the Facility Agent has not
agreed to purchase all of the Commitment of such Departing
Bank within fifteen (15) days of a written request from WGRC,
WGRC may request that one or more of the other Banks, in their
sole discretion, purchase the remaining Commitment, or any
portion thereof, of such Departing Bank. In the event that
more than one Bank so agrees to purchase all or a portion of
the Commitment of the Departing Bank which is not purchased by
the Facility Agent under clause (i) above, and the aggregate
amount requested under this clause (ii) exceeds the remaining
Commitment of such Departing Bank, each such Bank shall
purchase a portion of such Departing Bank's Commitment equal
to (a) the amount of such Bank's requested purchase times (b)
the Commitment of such Departing Bank not purchased by the
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Facility Agent under clause (i) above, divided by (c) the
aggregate amount of the requested purchases thereof by the
Banks.
(iii) To the extent that the Banks have not agreed to
purchase all of such remaining Commitment, if any, of such
Departing Bank within fifteen (15) days of a written request
from WGRC, WGRC shall have the right, at any time, to select
an Eligible Assignee reasonably acceptable to the Facility
Agent to purchase any remaining Commitment, or any portion
thereof, of such Departing Bank (each such new financial
institution, a "Replacement Bank").
Each such assignment shall be executed pursuant to one or more duly
executed Assignments and Acceptances in the form of Exhibit 12.03
hereto, and shall be consummated within ten (10) Business Days
after the date the Banks and Replacement Banks, as applicable,
agree to purchase the Departing Bank's Commitment as described
above, at an aggregate purchase price equal to the principal amount
of such Departing Bank's outstanding Revolving Loans, all accrued
interest thereon and all other amounts due and owing to such
Departing Bank hereunder or under any other Facility Document.
Each such assignment shall become effective upon payment of such
aggregate purchase price and, with respect to the replacement of a
Dissenting Bank pursuant to Section 2.06(d), the expiration of such
Dissenting Bank's Commitment. Notwithstanding the foregoing, no
assignment under this Section 2.10 shall be consummated if, as a
result thereof, a Liquidation Event or Unmatured Liquidation Event
would occur. Immediately upon such effectiveness, but only if the
Liquidation Period shall not have commenced in accordance with the
terms of this Agreement, (1) the purchasing Banks and/or the
Replacement Banks, as the case may be, shall assume the Departing
Bank's rights and obligations hereunder to the extent purchased
(including, without limitation, obligations to make Revolving Loans
and participate in Letters of Credit), (2) each remaining Bank's
Pro Rata Shares shall be adjusted accordingly (including any
adjustment for reductions in the Facility Amount as a result of the
expiration of a Dissenting Bank's Commitment) and (3) such
Departing Bank shall be released from any further funding
obligations with respect to the Revolving Loans and the
Participated Letters of Credit (whether issued theretofore or
thereafter). Unless WGRC shall have arranged for the surrender or
replacement of each Syndicated Letter of Credit under which the
Departing Bank is an Issuer or made such other arrangements in
respect thereof as shall be mutually satisfactory to WGRC, such
Departing Bank, the proposed Replacement Bank and the Facility
Agent, WGRC shall provide cash collateral to the Collateral Agent
concurrently with the effectiveness of each assignment hereunder
(or, in the case of Dissenting Banks, following such effectiveness
in accordance with Section 2.06(d)) in an amount equal to each
Departing Bank's portion of Syndicated Letters of Credit issued by
such Departing Bank. Any cash collateral held for all Departing
Banks' portions of Syndicated Letters of Credit (whether under this
Section 2.10 or under Section 2.06(d)) shall be retained by the
Collateral Agent in a separate interest-bearing account maintained
on the corporate trust side of the Bank to be invested in Permitted
Investments in the manner provided in Section 9.09 (with interest
thereon to be returned to the Collection Account as and when the
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same is paid) and shall not otherwise be released unless and until,
and only to the extent that either (i) a related Letter of Credit
(or any Departing Bank's share thereof) has terminated, been
replaced or expired undrawn, upon which termination or expiration
the applicable portion of the cash collateral shall be returned to
the Collection Account for distribution and application in
accordance with Section 9.07 or Section 9.08, as applicable or (ii)
the Syndicated Letters of Credit have been drawn, in which event
the applicable portion of the cash collateral shall be wired to the
applicable beneficiary or beneficiaries in satisfaction of the
Departing Bank's funding obligations under such Syndicated Letters
of Credit. Upon the replacement of a Departing Bank as described
above, such Departing Bank shall cease to be a party hereto
(subject to any rights of indemnification which survive the
termination of this Agreement). The Facility Agent is hereby
authorized to execute one or more Assignment and Acceptances as
attorney-in-fact for any Departing Bank failing to execute and
deliver the same within five (5) Business Days after the date on
which the Departing Bank was tendered the purchase price and was
required to execute such Assignment and Acceptance in accordance
with the foregoing provisions of this Section 2.10.
ARTICLE III
THE LETTER OF CREDIT FACILITY
SECTION 3.01. Obligation to Issue; Renewal of L/C
Facility. Subject to the terms and conditions of this Agreement,
and in reliance upon the representations and warranties set forth
herein, each Bank hereby severally agrees, and the Issuing Bank
individually agrees, to issue for the account of WGRC through such
Issuer's branches as it and WGRC may jointly agree, one or more
Letters of Credit in accordance with this Article III, from time to
time during the period commencing on the Effective Date and ending
on the Termination Date.
SECTION 3.02. Types and Amounts. No Issuer shall have
any obligation to issue any Letter of Credit at any time if:
(i) such Issuer's Pro Rata Share of the aggregate
maximum amount then available for drawing under the
Syndicated Letters of Credit plus, in the case of (x) the
Issuing Bank, the maximum amount then available for
drawing under the Participated Letters of Credit, or
(y) in the case of any other Bank, its Pro Rata Share of
the maximum amount available for drawing under such
Participated Letters of Credit after giving effect to the
issuance of the requested Letter of Credit, shall exceed
any limit imposed by law or regulation upon such Issuer
or Bank, written notice of which limit has been given by
such Issuer or Bank to WGRC and the Facility Agent;
(ii) after giving effect to the issuance of the
requested Letter of Credit, either: (A) the Aggregate L/C
Amount would exceed the L/C Facility Sub-Amount, or
(B) the Aggregate Net Outstandings would exceed the Base
Amount; or (C) the sum of the Aggregate L/C Amount and
the Aggregate Loan Amount would exceed the Facility
Amount;
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(iii) such Letter of Credit has an expiration date
(A) more than eighteen months after the date of issuance
(subject to renewal for an additional eighteen months
unless earlier terminated by sixty (60) days prior
written notice from the Facility Agent in accordance with
the terms of this Agreement) or (B) later than three (3)
Business Days prior to the Commitment Termination Date;
or
(iv) the beneficiary under such Letter of Credit is a
foreign government or an entity located in a foreign
jurisdiction with whom, because of governmental hostilities or
terrorist activities, such Issuer is restricted from doing
business, prior written notice of which restriction has been
given by such Issuer to WGRC and the Facility Agent.
SECTION 3.03. Conditions. In addition to being subject
to the satisfaction of the conditions contained in Article V, the
obligation of the Issuers to issue any Letter of Credit is subject
to the satisfaction in full of the following conditions:
(i) WGRC shall have timely delivered to the
Facility Agent and to each applicable Issuer at such
times and in such manner as the Facility Agent and each
such Issuer may prescribe a Letter of Credit application
as described below in Section 3.04 and such other
documents and materials as may be required pursuant to
the terms thereof, and the terms of the proposed Letter
of Credit shall be reasonably satisfactory to each
applicable Issuer as to form and content; and
(ii) as of the date of issuance no order, judgment
or decree of any court, arbitrator or governmental
authority shall purport by its terms to enjoin or
restrain any applicable Issuer from issuing the Letter of
Credit (or to enjoin or restrain any Bank from
participating therein) and no law, rule or regulation
applicable to any applicable Issuer or Bank and no
request or directive (whether or not having the force of
law) from any governmental authority with jurisdiction
over any applicable Issuer or Bank shall prohibit or
request that such Issuer or Bank refrain from the
issuance of (or participation in) letters of credit
generally or the issuance of (or participation in) that
Letter of Credit.
SECTION 3.04. Issuance of Letters of Credit.
(a) Request for Issuance. Except with respect to
Letters of Credit to be issued on the Effective Date, WGRC shall
give the Facility Agent at least ten (10) Business Days' prior
written notice of any requested issuance of a Syndicated Letter of
Credit under this Agreement and WGRC shall give each of the
Facility Agent and the Issuing Bank at least three (3) Business
Days' prior written notice of any requested issuance of a
Participated Letter of Credit under this Agreement (except that, in
lieu of each such written notice, WGRC may give telephonic notice
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of such request if confirmed promptly in writing). Each such
notice shall be in the form of a Letter of Credit application
attached hereto as Exhibit 3.04(a) and shall specify the stated
amount of the Letter of Credit requested, the effective date (which
day shall be a Business Day) of issuance of such requested Letter
of Credit, the date on which such requested Letter of Credit is to
be delivered (if different from the effective date), the date on
which such requested Letter of Credit is to expire, the purpose for
which such Letter of Credit is to be issued, the Person for whose
benefit the requested Letter of Credit is to be issued, and, if
available, a copy of the proposed Letter of Credit substantially in
the form of Exhibit 3.04(c)(ii) or Exhibit 3.04(c)(iii) hereto
(appropriately completed, including, if applicable, the form of
draw certificate with respect thereto together with such other
changes requested by the beneficiary as may be acceptable to each
Issuer thereof). Such notice, to be effective, must be received by
the Facility Agent (and, if applicable, the Issuing Bank) not later
than 1:00 p.m. (Boston time) on the last Business Day on which
notice can be given under the first sentence of this
Section 3.04(a), and WGRC shall, in each such case, provide copies
of such notices to the other Banks within one (1) Business Day.
Prior to the close of business on the Business Day following the
Business Day on which the Facility Agent makes the determination
described below pursuant to Section 3.04(b), the Facility Agent
shall confirm to WGRC by written or telex notice, or telephonic
notice confirmed promptly thereafter in writing, whether the
applicable Issuers are authorized to issue the requested Letter of
Credit in accordance with Section 3.04(b), and, if they are so
authorized, shall promptly advise each Bank (and, if applicable,
the Issuing Bank) of such authorization and, with respect to
Syndicated Letters of Credit, of each Bank's portion thereof.
(b) Responsibilities of the Facility Agent; Issuance.
The Facility Agent shall determine (based solely upon the
information set forth in the applicable Daily Report provided by
the Servicer to the Facility Agent), as of the close of business on
the third Business Day immediately preceding the requested issuance
date, each of (1) the excess of the L/C Facility Sub-Amount over
the Aggregate L/C Amount, (2) the excess of the Base Amount over
the Aggregate Net Outstandings and (3) the excess of the Facility
Amount over the sum of the Aggregate L/C Amount and the Aggregate
Loan Amount. If, and only if, the stated amount of the requested
Letter of Credit is less than or equal to the amount of each such
excess and subject to the satisfaction of the conditions set forth
in Section 3.03 and Article V hereof, the Facility Agent shall
authorize the Banks or the Issuing Bank, as applicable, to issue
the requested Letter of Credit. Subject to the terms and
conditions of this Article III, the Banks or the Issuing Bank, as
applicable, shall, on the requested date, issue such Letter of
Credit on behalf of WGRC. In this connection, the Facility Agent
and each Issuer may conclusively assume that the applicable
conditions set forth in Section 3.03 and Article V hereof have been
satisfied (other than as set forth in this Section 3.04(b)) unless
the primary loan officer of the Facility Agent or such Issuer, as
the case may be, having day-to-day responsibility for matters
relating to this transaction or, if different, the officer of the
Facility Agent or such Issuer designated under Section 12.05 for
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receiving notices sent to such party, has actual knowledge to the
contrary or unless the Facility Agent or such Issuer, as the case
may be, shall have received written notice to the contrary from the
Facility Agent or a Bank.
(c) Forms of Letters of Credit. (i) Each Letter of
Credit to be issued in a face amount of less than $5,000,000 shall
be in the form of a Participated Letter of Credit and each Letter
of Credit to be issued in a greater face amount shall be in the
form of a Syndicated Letter of Credit.
(ii) Each Participated Letter of Credit shall consist of
a single letter of credit issued by the Issuing Bank, and shall
have a face amount of less than $5,000,000. Each such Participated
Letter of Credit shall be prepared by the Issuing Bank on the basis
of the information provided in the request for issuance and shall
be otherwise substantially in the form of Exhibit 3.04(c)(ii).
Promptly upon such preparation, the Issuing Bank shall provide a
copy of such Participated Letter of Credit to the Facility Agent.
(iii) Each Syndicated Letter of Credit shall consist of
a single letter of credit issued on the same day by the Banks in
counterpart form ratably in accordance with their respective Pro
Rata Shares, and shall have an aggregate face amount equal to or
greater than $5,000,000. Promptly following the Facility Agent's
receipt of a request for issuance of a Syndicated Letter of Credit
pursuant to Section 3.04(a) above, the Facility Agent shall prepare
a form of the Syndicated Letter of Credit on the basis of the
information provided in the request for issuance and which is
otherwise substantially in the form of Exhibit 3.04(c)(iii) and
shall cause execution copies of such Syndicated Letter of Credit to
be delivered to each Bank. Each Bank shall promptly, and in no
event later than four (4) Business Days after receipt of the form
prepared by the Facility Agent, advise the Facility Agent of any
objections it has to the form of the proposed Syndicated Letter of
Credit. Unless a Bank so notifies the Facility Agent of an
objection, such Bank shall, not later than two (2) Business Days
prior to the date of issuance of such Syndicated Letter of Credit,
deliver to the Facility Agent a counterpart of such Syndicated
Letter of Credit, duly executed by such Bank. After the Facility
Agent's receipt of a counterpart of such Syndicated Letter of
Credit from each Bank, but only if the Facility Agent shall have
received such counterparts from all Banks, and upon fulfillment of
the applicable conditions set forth in this Agreement, the Facility
Agent shall make such Syndicated Letter of Credit available to WGRC
on the requested issuance date. WGRC agrees that, if any
Syndicated Letter of Credit is not issued on account of the failure
of a Bank to forward its counterpart or on account of an objection
by any Bank, then none of the Facility Agent, the Collateral Agent
or the Banks other than the Bank or Banks failing to forward such
counterpart or making such objection (to the extent such objection
was wrongful) shall have any liability on account of such failure
or non-issuance.
(d) Notice of Issuance. (i) The Issuing Bank shall
give the Facility agent written or telex notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance
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and delivery of a Participated Letter of Credit, together with a
copy of each such Participated Letter of Credit as executed by the
Issuing Bank.
(ii) The Facility Agent shall give each Bank written or
telex notice, or telephonic notice confirmed promptly thereafter in
writing, of the issuance and delivery of a Participated Letter of
Credit or Syndicated Letter of Credit, together with a copy of each
such Letter of Credit, as executed by the Issuing Bank or the
Banks, as applicable.
(e) No Extension or Amendment. No Issuer may extend any
Letter of Credit or amend any Letter of Credit to increase the face
amount thereof unless the requirements of this Section 3.04 are met
as though a new Letter of Credit was being requested and issued.
If a Letter of Credit contains provisions for renewal absent
written notice from the Facility Agent or the Issuing Bank, as
applicable, (i) with respect to Participated Letters of Credit, the
Issuing Bank shall give the Facility Agent, at least thirty
Business Days prior thereto, written notice of the last Business
Day on which the Issuing Bank is entitled to give such notice of
non-renewal, and (ii) with respect to any Letter of Credit, the
Facility Agent shall determine, as of the close of business on the
third Business Day prior to the last Business Day on which the
Facility Agent or the Issuing Bank is entitled to give such notice
of non-renewal, whether extension of such Letter of Credit would be
authorized in accordance with the first sentence of this Section
3.04(e). The Facility Agent shall promptly notify the applicable
Issuers of the result of such determination. Neither the Facility
Agent nor the Issuing Bank shall be required to give any such
notice of non-renewal under this Section 3.04(e), and the Facility
Agent and the Issuing Bank shall be entitled to assume that the
applicable conditions set forth in Section 3.03 and Article V
hereof have been satisfied (except as set forth in this Section
3.04(e)), unless the primary loan officer of the Facility Agent or
the Issuing Bank, as the case may be, having day-to-day
responsibility for matters relating to this transaction or, if
different, the officer of the Facility Agent or Issuing Bank
designated under Section 12.05 for receiving notices sent to such
party, has actual knowledge to the contrary or unless it shall have
received notice to the contrary from a Bank on or before the third
Business Day prior to the last Business Day on which the Facility
Agent or the Issuing Bank is entitled to give such notice of non-
renewal. In the event a Letter of Credit contains provisions for
renewal as described above, and the Termination Date has occurred,
the Facility Agent or the Issuing Bank, as applicable, shall give
any required notice of non-renewal at the earliest possible date on
which the Facility Agent or the Issuing Bank is entitled to give
such notice. The Issuing Bank shall have no liability to the Banks
or the Agents with respect to the renewal or non-renewal of any
Participated Letter of Credit in the event that the Issuing Bank
has acted in accordance with the terms of this Agreement.
(f) Participation by Banks in Participated Letters of
Credit. Upon the issuance by the Issuing Bank of a Participated
Letter of Credit, each Bank shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuing Bank,
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without recourse or warranty, an undivided interest and
participation to the extent of such Bank's Pro Rata Share in such
Participated Letter of Credit (including, without limitation, all
obligations of WGRC and rights of the Issuing Bank with respect
thereto and all security therefor, other than amounts owing to the
Issuing Bank under Section 4.02(d), Section 4.02(e) or Section
4.04); provided, however, that a Participated Letter of Credit
shall not be entitled to the benefits of this Section 3.04(f) or
Section 3.06(b) if the Issuing Bank shall have received written
notice from the Facility Agent or any Bank on or before the
Business Day immediately prior to the date of the Issuing Bank's
issuance of such Participated Letter of Credit that one or more of
the conditions contained in Article V is not then satisfied, and,
in the event the Issuing Bank receives such a notice, it shall have
no further obligation to issue any Participated Letter of Credit
until such notice is withdrawn by the Facility Agent or such Bank
or it receives written notice from the Facility Agent that such
condition has been effectively satisfied or waived in accordance
with the provisions of this Agreement. The Issuing Bank shall have
no liability to the Banks or the Agents with respect to the
issuance or nonissuance of any Participated Letter of Credit in the
event that the Issuing Bank has acted in accordance with the terms
of this Agreement.
SECTION 3.05. Reimbursement Obligations.
(a) Reimbursement. Notwithstanding any provisions
elsewhere to the contrary, (i) WGRC shall reimburse each applicable
Issuer for drawings under any Letter of Credit unless and until
such reimbursement obligations are extinguished as provided below,
(ii) such reimbursement obligations for drawings under a Letter of
Credit shall bear interest from the date of the relevant drawing
until the date of the Revolving Loans described in Section 2.08 at
the same rate at which interest would then accrue for any Base Rate
Loans hereunder and (iii) WGRC's obligations to reimburse the
applicable Issuers for the principal amount of all drawings under a
Letter of Credit shall be extinguished upon the making of any
Revolving Loans described in Section 2.08 or of payment of such
amount in full in cash.
(b) Duties of the Issuers. Any action taken or omitted
to be taken by the Facility Agent or any Issuer under or in connec-
tion with any Letter of Credit, if taken or omitted in the absence
of willful misconduct or gross negligence, shall not put the
Facility Agent or such Issuer under any resulting liability to any
Bank, any other Issuer, any beneficiary or proposed beneficiary of
a Letter of Credit, or (assuming that the Facility Agent or the
Issuing Bank, as applicable, has complied with the procedures
specified in Section 3.04) relieve any Issuer of its obligations
hereunder in respect of such Letter of Credit. In determining
whether to authorize payment under any Letter of Credit, the
Facility Agent or the Issuing Bank, as applicable, shall have no
obligation relative to the Banks or to WGRC 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 require-
ments of such Letter of Credit and, with respect to the Facility
Agent, to provide notice as described in Section 3.06. Neither the
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Facility Agent nor the Issuing Bank shall be liable for any error,
omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. WGRC agrees that any action
taken or omitted by the Facility Agent or the Issuing Bank under or
in connection with each Letter of Credit and the related drafts and
documents, if done in good faith, shall be binding upon WGRC and
shall not result in any liability on the part of the Facility Agent
or the Issuing Bank to WGRC.
(c) Reliance by Issuer. The Facility Agent and the
Issuing Bank shall be entitled to rely, and shall be fully
protected in relying upon any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document reasonably believed by the
Facility Agent and/or the Issuing Bank to be genuine and correct
and to have been signed, sent or made by the proper person or
persons and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Facility
Agent and/or the Issuing Bank.
SECTION 3.06. Payments under the Letters of Credit.
(a) Sharing of Syndicated Letter of Credit Payments. In
the event that the Facility Agent receives a request for draw under
any Syndicated Letter of Credit, then, unless WGRC shall have, at
its election, previously made available to the Facility Agent the
amount of such payment, the Facility Agent shall promptly notify
each Bank of the amount of such requested draw and shall promptly
forward to each Bank a copy of all documents accompanying such
requested draw. Each Bank shall, no later than 11:00 a.m. (Boston
time) on the third Business Day following the Facility Agent's
receipt of such request for draw, either (i) notify the Facility
Agent that it will dishonor such request and the reason for such
dishonor or (ii) unconditionally pay to the Facility Agent the
amount of such Bank's Pro Rata Share of such payment in Dollars and
in same day funds. The Facility Agent shall promptly pay such
amount, and any other amounts received by the Facility Agent
pursuant to this Section 3.06(a), to the beneficiary thereof. In
the event that the Banks or any Bank has refused to forward funds,
the Facility Agent shall, but only to the extent that funds were
not so forwarded, dishonor such request (in whole or in part, as
applicable). Each such payment by the Banks to or for the benefit
of the beneficiary shall constitute a Revolving Loan under this
Agreement in accordance with Section 2.08 and shall cause a
corresponding reduction in the Aggregate L/C Amount. Unless the
Facility Agent shall have received notice from a Bank on or prior
to 11:00 a.m. (Boston time) on the date of payment that such Bank
will not make available to the Facility Agent such Bank's portion
thereof, the Facility Agent may (but shall not be required to)
assume that each Bank has made its Pro Rata Share of the amount of
such payment available to the Facility Agent and the Facility Agent
may (but shall not be required to) make available to the
beneficiary of the Syndicated Letter of Credit a corresponding
amount in reliance upon such assumption. If and to the extent that
any Bank shall not have made its portion of such payment available
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to the Facility Agent and the Facility Agent has made available a
corresponding amount to the applicable beneficiary, such Bank and
WGRC each severally agrees to repay to the Facility Agent forthwith
on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the
applicable beneficiary until the date such amount is repaid to the
Facility Agent (i) in the case of WGRC, at the Base Rate and (ii)
in the case of such Bank, at (1) the Federal Funds Rate for such
date and the next succeeding Business Day and (2) the Federal Funds
Rate plus two percent (2%) for each day thereafter. Any such
repayment of principal by WGRC shall be made from Available Cash
pursuant to Section 9.07(c) hereof. If such Bank shall repay to
the Facility Agent such corresponding amount, such amount shall
constitute a Revolving Loan in accordance with the terms of this
Section 3.06 and Section 2.08.
(b) Payments under Participated Letters of Credit. (i)
In the event that the Issuing Bank receives a request for draw
under any Participated Letter of Credit which the Issuing Bank
decides, in its sole discretion, to honor, then, unless WGRC shall
have made available to the Issuing Bank the amount of such payment,
the Issuing Bank shall promptly notify each Bank of the amount of
such requested draw and shall promptly forward to each Bank a copy
of all documents accompanying such requested draw. Each Bank
shall, no later than 11:00 a.m. (Boston time) on the third Business
Day following the Issuing Bank's receipt of such request for draw,
unconditionally pay to the Issuing Bank the amount of such Bank's
Pro Rata Share of such payment in Dollars and in same day funds.
The Issuing Bank shall promptly pay such amount, together with any
other amounts received by the Issuing Bank pursuant to this
Section 3.06(b), to the beneficiary of such Participated Letter of
Credit in accordance with the terms thereof. Each such payment by
the Banks to the Issuing Bank shall constitute a Revolving Loan
under this Agreement in accordance with Section 2.08 and shall
cause a corresponding reduction in the Aggregate L/C Amount. If
and to the extent that any Bank shall not have made its portion of
such payment available to the Issuing Bank and the Issuing Bank has
made available a corresponding amount to the applicable beneficiary
(it being understood that the Issuing Bank's obligations to such
beneficiary under such Letter of Credit will not, unless the
beneficiary has otherwise agreed, be conditioned on the performance
by the Banks of their obligations under this Section 3.06(b)), such
Bank and WGRC each severally agrees to repay to the Issuing Bank
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the applicable beneficiary until the date such amount
is repaid to the Facility Agent (1) in the case of WGRC, at the
Base Rate and (2) in the case of such Bank, at (x) the Federal
Funds Rate for such date and the next succeeding Business Day and
(y) the Federal Funds Rate plus two percent (2%) for each day
thereafter. Any such repayment of principal by WGRC shall be made
from Available Cash pursuant to Section 9.07(c) hereof. If such
Bank shall repay to the Issuing Bank such corresponding amount,
such amount shall constitute a Revolving Loan in accordance with
the terms of this Section 3.06 and Section 2.08.
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(ii) In the event that any Bank fails to fund its Pro
Rata Share of any payment required to be made by such Bank to the
Issuing Bank in accordance with the provisions of this Section
3.06(b), until the earlier of such Bank's cure of all such failures
and the Collection Date, the proceeds of all amounts thereafter
paid or repaid to the Facility Agent by WGRC and otherwise required
to be applied to such Bank's share of any Obligations pursuant to
the terms of this Agreement shall be advanced to the Issuing Bank
by the Facility Agent on behalf of such Bank to cure, in full or in
part, such failure by such Bank, but shall nevertheless be deemed
to have been paid to such Bank in satisfaction of such Obligations.
Notwithstanding anything in this Agreement to the contrary:
(1) the foregoing provisions of this Section
3.06(b)(ii) shall apply only with respect to the proceeds
of payments of Obligations and shall not affect the
conversion or continuation of any Revolving Loans
hereunder; and
(2) a Bank shall be deemed to have cured its failure to
fund its Pro Rata Share of any such required payment in
respect of a Participated Letter of Credit at such time as an
amount equal to such Bank's Pro Rata Share (determined as of
the time of such Bank's failure to fund such required payment)
of such required payment plus any interest accrued thereon in
accordance with the provisions of this Agreement, is fully
funded to such Issuing Bank, whether made by such Bank itself,
by operation of the terms of this Section 3.06(b)(ii) or by
WGRC directly to the Issuing Bank.
(c) Sharing of Reimbursement Obligation Payments. If any
Issuer receives a payment on account of a draw under a Letter of
Credit, including any interest thereon, as to which the Facility
Agent or the Issuing Bank, as applicable, has received any payments
from the Banks pursuant to this Section 3.06, such Issuer shall
promptly pay to the Facility Agent and the Facility Agent shall
promptly pay to each Bank, in Dollars and in the kind of funds so
received, an amount equal to such Bank's Pro Rata Share thereof.
Each such payment shall be made by the Facility Agent on the
Business Day on which the Facility Agent receives the funds paid to
it pursuant to the preceding sentence, if received prior to 2:00
p.m. (Boston time) on such Business Day and otherwise on the next
succeeding Business Day, and each such payment, when received,
shall be applied by the Banks against the Revolving Loans.
(d) Obligations Irrevocable. The obligations of a Bank
to make payments to the Facility Agent or the Issuing Bank, as
applicable, with respect to a Letter of Credit, and the obligation
of WGRC to reimburse each Issuer for the amount of such payments
made by it in respect of any draws on the Letters of Credit, shall
be irrevocable, not subject to any qualification or exception
whatsoever and shall be made in accordance with, but not subject
to, the terms and conditions of this Agreement under all circum-
stances, including, without limitation, any of the following
circumstances:
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(i) any lack of validity or enforceability of this
Agreement, any of the other Facility Documents, any
Letter of Credit or any related documents;
(ii) the existence of any claim, setoff, defense or
other right which WGRC or any Seller 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), or against
either Agent, any Bank, 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 WGRC or any other party and the beneficiary named
in any Letter of Credit);
(iii) any draft, certificate or any other document
presented under the Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inac-
curate in any respect;
(iv) any renewal, extension or modification of any Letter
of Credit so long as the terms of such Letter of Credit after
giving effect to such extension, renewal or modification would
be permitted hereunder;
(v) any lack of validity, effectiveness 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;
(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) any failure of the beneficiary of a Letter of Credit
to substantially comply with the conditions required in order
to draw upon any Letter of Credit;
(viii) the surrender or impairment of any security for
the performance or observance of any of the terms of any
of the Facility Documents; or
(ix) the occurrence of any Liquidation Event or
Unmatured Liquidation Event.
SECTION 3.07. Indemnification; Exoneration.
(a) Indemnification. In addition to amounts payable as
elsewhere provided in this Article III, WGRC hereby agrees, subject
to Section 3.07(d), to protect, indemnify, pay and save each Agent,
each Bank and each Issuer harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) which such Agent,
such Bank or such Issuer may incur or be subject to as a
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consequence, direct or indirect, of the issuance of any Letter of
Credit. Any amounts owing by WGRC under this Section 3.07 shall be
payable subject to the terms of Sections 9.07(c) and 9.08 hereof.
(b) Assumption of Risk by WGRC. As between WGRC, the
Issuers, the Banks and the Agents, WGRC assumes all risks of the
acts and omissions of, or misuse of the Letters of Credit by, the
respective beneficiaries of the Letters of Credit. In furtherance
and not in limitation of the foregoing, subject to the provisions
of the Letter of Credit applications and Section 3.07(d) hereof,
the Agents, the Banks and the Issuers shall not be responsible:
(i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection
with the application for and issuance of the Letters of Credit,
even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for
the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any
reason; (iii) for 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) for errors in interpretation of technical terms; (v) for any
loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit or
of the proceeds thereof; (vi) for the misapplication by the benefi-
ciary of a Letter of Credit of the proceeds of any drawing under
such Letter of Credit; and (vii) for any consequences arising from
a Force Majeure Event beyond the control of the Agents, the Banks
and the Issuers, including, without limitation, any act or
omission, whether rightful or wrongful, of any present or future de
jure or de facto governmental authority. None of the above shall
affect, impair, or prevent the vesting of any of the Issuers'
rights or powers under this Section 3.07.
(c) Exoneration. In furtherance and extension and not
in limitation of the specific provisions hereinabove set forth, any
action taken or omitted by any Bank under or in connection with the
Letters of Credit or any related certificates, if taken or omitted
in good faith, shall not put the Issuers, the Banks or the Agents
under any resulting liability to WGRC or its Affiliates or relieve
WGRC of any of its obligations hereunder to any such Person.
(d) Exceptions to Indemnity. Notwithstanding anything to
the contrary contained in this Section 3.07, WGRC shall have no
obligation to indemnify any Person or Issuer under this Section
3.07, and hereby waives no claims against any Person, Bank or
Issuer, in respect of any liability arising primarily out of (i)
the gross negligence or willful misconduct of such Person, (ii) the
wrongful dishonor by any Issuer of a proper demand for payment made
under a Letter of Credit issued by such Issuer, unless such
dishonor was made at the request of WGRC, or (iii) the failure of
any Issuer to exercise reasonable care in ascertaining whether the
documents required to be delivered under any Letter of Credit
appear on their face to be in compliance with the terms and
conditions of such Letter of Credit.
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ARTICLE IV
INTEREST, FEES AND OTHER PAYMENT TERMS
SECTION 4.01. Interest. (a) Subject to the provisions
of Section 4.01(d), interest shall accrue on the outstanding amount
of all Revolving Loans comprising part of a Base Rate Borrowing at
a rate per annum equal to the Alternate Base Rate. Such rate shall
be computed on the basis of the actual number of days elapsed
(including the first but excluding the day of payment) over a year
of 365 or 366 days, as the case may be.
(b) Subject to the provisions of Section 4.01(d),
interest shall accrue on all the outstanding amount of Eurodollar
Loans at a rate per annum equal to the Eurodollar Rate for the
Interest Period relating to such Eurodollar Loans plus five-eighths
of one percent (0.625%). Such rate shall be computed on the basis
of the actual number of days elapsed (including the first but
excluding the day of payment) over a year of 360 days.
(c) Accrued and unpaid interest with respect to any
Revolving Loan shall be payable in arrears on the last day of the
Interest Period relating thereto except as otherwise provided in
this Agreement.
(d) From and after the Business Day following the
Business Day upon which written notice of the occurrence of a
Liquidation Event from the Facility Agent is received by WGRC and
so long as such Liquidation Event continues, or at any time after
the [third] Settlement Date following the Termination Date,
interest will accrue on all Revolving Loans until paid at a per
annum rate equal to two percent (2.0%) above the otherwise
applicable rate described in Section 4.01(a) or (b) above (such
additional interest being payable subject to the terms of Sections
9.07(c) and 9.08 hereof).
SECTION 4.02. Fees. (a) WGRC shall pay to the Facility
Agent, for the benefit of the Banks, the fees described
hereinbelow:
(i) A non-usage fee (the "Non-Usage Fee") for the period
from and including the Effective Date until the Termination
Date, equal to four-tenths of one percent (0.40%) per annum
times the excess, if any, of (A) the Facility Amount over (B)
the sum of the Aggregate Loan Amount and the Aggregate L/C
Amount, computed on the basis of the actual number of days
elapsed (including the first but excluding the day of payment)
over a year of 365 or 366 days, as the case may be.
(ii) A letter of credit fee (the "L/C Fee") with respect
to each Letter of Credit for the period commencing upon
issuance thereof until the same shall have been surrendered or
expired, of five-eighths of one percent (0.625%) per annum on
the outstanding face amount of each such Letter of Credit,
computed on the basis of actual days elapsed (including the
first but excluding the day of payment), over a year of 360
days.
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All of the foregoing specified fees shall be payable monthly in
arrears on each Settlement Date with respect to the prior
Collection Period and shall be forwarded by the Facility Agent
ratably to the Banks according to their Pro Rata Shares; provided,
that so long as any Departing Bank remains liable with respect to
any Syndicated Letter of Credit (notwithstanding the cash
collateralization thereof), such Departing Bank shall, except as it
may otherwise agree, receive a portion of the L/C Fee corresponding
to its portion of such Syndicated Letter of Credit, and the L/C Fee
owing to each other Bank shall be adjusted accordingly.
(b) WGRC shall cause the Financial Advisor on the
Effective Date to pay to each Bank, for such Bank's own account, an
up-front fee of .15% times the dollar amount of such Bank's
Commitment. All such up-front fees shall be paid on the Effective
Date.
(c) WGRC shall pay to Shawmut, for its own account in its
capacities as the Facility Agent and the Collateral Agent, such
other fees not described above as are specified in that certain
letter from Shawmut to WGRC dated May 20, 1994. Such fees shall
include the annual agents' fees described therein (the "Agent
Fee"), shall be due and payable at the times specified in such
letter, and shall not exceed the greater of (i) $100,000 per year
and (ii) .15% per annum times the Facility Amount.
(d) WGRC shall pay to each Issuer administrative fees in
connection with the issuance, amendment, draw or transfer of any
Letter of Credit, which fees shall, for each Issuer, not exceed $50
for each amendment or issuance of a Letter of Credit and $150 for
each draw or transfer. Each such fee shall be due and payable
concurrently with such issuance, amendment, draw or transfer, as
the case may be, of such Letter of Credit.
(e) WGRC shall pay to the Issuing Bank, for its own
account, a letter of credit issuance fee (the "L/C Fronting Fee")
of one-quarter of one percent (0.25%) times the face amount of each
Participated Letter of Credit. Such fee shall be due and payable
with respect to a Participated Letter of Credit upon the issuance,
and upon each renewal, of such Letter of Credit.
SECTION 4.03. Payments and Computations. (a) All
payments and prepayments on the Revolving Notes and all other
amounts to be paid or deposited by WGRC hereunder shall be paid to
the Facility Agent (or, where applicable, to the Issuing Bank) no
later than 2:00 p.m. (Boston time) on the day when due in lawful
money of the United States of America in same day funds, and any
payments received after such time shall be deemed to have been made
on the next Business Day. Whenever any payments to be made
hereunder shall be stated to be due on a day other than a Business
Day, the due date thereof shall be extended to the next succeeding
Business Day (and such extension of time shall in such case be
included in the computation of interest or fees as applicable).
The Facility Agent shall disburse amounts so received to the Banks
in same day funds (i) on the date received if such funds are
received at or prior to 2:00 p.m. (Boston time) and (ii) on the
next Business Day if such funds are received after 2:00 p.m.
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(Boston time). If the Facility Agent fails to so disburse funds on
such Business Day, the Facility Agent shall pay to each Bank
interest on the funds owing to such Bank until the date such amount
is paid at (1) the Federal Funds Rate for such Business Day and the
next succeeding Business Day, and (2) the Federal Funds Rate plus
two percent (2%) for each day thereafter.
(b) WGRC will, to the extent permitted by law (and
without duplication to any interest payable pursuant to the
provisions of Section 4.01(d)) pay to the Facility Agent interest
on all amounts not paid or deposited when due hereunder, from and
after the Business Day immediately following the Business Day WGRC
receives notice thereof from the Facility Agent until such amounts
are paid in full, at 2% per annum above the Alternate Base Rate.
Such interest shall, subject to Sections 9.07(c) and 9.08, be
payable on demand and shall be for the account of, and distributed
by the Facility Agent to, the Banks and the Agents ratably in
accordance with their respective interests in such overdue amounts.
(c) All payments owing by WGRC under this Agreement
shall be made without deduction for any setoffs, counterclaims or
other amounts owed or allegedly owed to WGRC by any Bank, either
Agent or the Issuing Bank.
SECTION 4.04. Yield Protection. (a) Notwithstanding
any other provision herein, if, after the date hereof, either (i)
the adoption of any law, rule or regulation (including any
imposition or increase of reserve requirements) or any change after
the date hereof in the interpretation or administration of any such
law, rule or regulation by any governmental authority, central bank
or comparable agency charged with the interpretation or
administration thereof, or (ii) the compliance by any Bank with any
guideline or request from any central bank or other governmental
authority or quasi-governmental authority exercising control over
banks or financial institutions generally (whether or not having
the force of law), shall subject any Bank to any reserve (including
any imposed by the Board), special deposit, assessment or similar
requirement (including a reserve, special deposit, assessment or
similar requirement that takes the form of a tax) against assets
of, deposits with or for the account of, or credit extended by,
such Bank's Eurodollar Lending Office or impose any other condition
on any Bank affecting its Eurodollar Loans or Letters of Credit or
its obligation to make Eurodollar Loans or to issue or participate
in Letters of Credit hereunder, and as a result of either of the
foregoing there shall be any increase in the cost to such Bank of
agreeing to make or making, funding or maintaining Eurodollar Loans
or issuing or maintaining any funding obligations in respect of
Letters of Credit, or there shall be a reduction in the amount
received or receivable by that Bank or its Eurodollar Lending
Office, then WGRC shall from time to time in accordance with the
provisions of Section 4.04(c), upon written notice from and demand
by such Bank (with a copy of such notice and demand to the Facility
Agent), pay to the Facility Agent for the account of such Bank
additional amounts sufficient to indemnify that Bank against such
increased cost or reduction in amount received or receivable;
provided, however, that this Section 4.04 shall not apply to any
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additional cost or reduction in amounts received or receivable that
is attributable to taxes except as specified above in this Section
4.04.
(b) If any Bank (including the Facility Agent and the
Issuing Bank) shall reasonably determine that the adoption after
the date hereof of any law, rule or regulation regarding capital
adequacy or capital maintenance, or any change after the date
hereof in any of the foregoing or in the interpretation or
administration thereof by any governmental authority, central bank
or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or any lending
office of such Bank) or any Bank's holding company with any request
or directive regarding capital adequacy or capital maintenance
(whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's or such Bank's holding
company's capital as a consequence of this Agreement, the Revolving
Loans made by such Bank pursuant hereto or the Letters of Credit
issued (or participated in) by such Bank to a level below that
which such Bank or such Bank's holding company could have achieved
but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital
adequacy), then from time to time in accordance with the provisions
of Section 4.04(c), WGRC shall pay to such Bank such additional
amount or amounts as will compensate such Bank or such Bank's
holding company for such reduction.
(c) Each Bank (or, as applicable, any Agent or the
Issuing Bank) shall promptly notify WGRC and the Facility Agent of
any event of which it has knowledge occurring after the date hereof
which will entitle such Bank to compensation pursuant to this
Section 4.04. A certificate of each Bank setting forth such amount
or amounts as shall be necessary to compensate such Bank as
specified in subsection (a) or (b) above, as the case may be
(including calculations thereof in reasonable detail) and the
adoption, change or compliance giving rise to such compensation
shall be delivered to WGRC and shall be conclusive absent
demonstrable error. WGRC shall pay each Bank the amount shown as
due on any such certificate delivered by it within 15 days after
its receipt of the same. Any Bank receiving any such payment shall
promptly make a refund thereof to WGRC if the law, regulation,
guideline or change in circumstances giving rise to such payment is
subsequently deemed or held to be invalid or inapplicable by a
final nonappealable order or decision and as a result thereof such
Bank shall not have incurred any increased costs or suffered any
reduction in the amounts received or receivable or the rate of
return on capital under this Agreement.
(d) Any Bank (or, as applicable, any Agent or the
Issuing Bank) claiming any additional amounts payable pursuant to
this Section 4.04 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to take any action to avoid or
minimize any amounts that otherwise may be payable by WGRC pursuant
to this Section 4.04, provided that such action would not, in the
good faith determination of the applicable affected party, be
otherwise disadvantageous to it.
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(e) Notwithstanding the foregoing, WGRC shall not be
required to make any payments nor indemnify any Bank, the Issuing
Bank or any Agent under this Section 4.04 with respect to any
increased costs or reduced returns incurred by such Bank, the
Issuing Bank or such Agent more than ninety (90) days before the
date a request for payment or indemnification is delivered to WGRC.
For the purposes of this Section 4.04(e), increased costs and
reduced returns incurred on account of new laws, rules, regulations
or interpretations which are given retroactive effect shall be
deemed incurred on the date following the adoption of such law,
rule, regulation or interpretation upon which the Bank is first
notified of its increased costs or reduced returns by any
governmental authority; provided that in no event shall WGRC be
obligated to pay any increased costs or reduced returns relating to
periods more than eighteen months (18) months prior to the date of
such notification.
(f) All payments owing by WGRC under this Section 4.04
shall be made subject to the terms of Sections 9.07(c) and 9.08
hereof.
SECTION 4.05. Illegality; Unavailability. (a) In the
event that on any date any Bank shall have reasonably determined
(which determination shall be final and conclusive and binding upon
all parties) that the making or continuation of its Eurodollar
Loans has become unlawful by compliance by that Bank in good faith
with any law, governmental rule, regulation or order, then, and in
any such event, that Bank (an "Affected Bank") shall promptly give
notice (by telephone confirmed in writing) to WGRC and the Facility
Agent (a copy of which notice the Facility Agent shall promptly
transmit to each Bank) of that determination. The obligation of
the Affected Bank to make or maintain its Eurodollar Loans during
any such period shall be terminated at the earlier of the
termination of the Interest Period then in effect for each
Eurodollar Loan or when required by law and WGRC shall, no later
than the termination of the Interest Period in effect at the time
any such determination pursuant to this Section 4.05 is made or
earlier, when required by law, convert the Eurodollar Loans of the
Affected Bank into Base Rate Loans.
(b) If, prior to the beginning of any Interest Period,
either (1) the Majority Banks shall have given notice to WGRC and
the Facility Agent as set forth in subsection (a) above, or (2) the
Facility Agent shall have reasonably determined (which
determination shall be final and conclusive and binding upon all
parties) that: (i) Dollar deposits in the relevant amount and for
such Interest Period are not available in the interbank eurodollar
market or (ii) by reason of circumstances affecting the interbank
eurodollar market for the Facility Agent's Eurodollar Lending
Office, that adequate and fair means do not exist for ascertaining
the applicable Eurodollar Rate applicable to a Eurodollar
Borrowing, then, and in any such event, the Facility Agent shall
promptly give notice of such determination to WGRC and to each Bank
indicating the facts and circumstances giving rise to such
determination. Thereafter and continuing until the Facility Agent
shall notify WGRC that the circumstances giving rise to such
determination no longer exist, each Eurodollar Borrowing, will, on
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the last day of the applicable Interest Period, automatically
convert into a Base Rate Borrowing, the obligation of the Banks to
make Eurodollar Loans shall be suspended and any Eurodollar
Borrowings requested to be made at such time shall be made as Base
Rate Borrowings.
(c) For purposes of this Section 4.05, a notice to WGRC
by any Bank shall be effective as to each of such Bank's
outstanding Eurodollar Loans, if lawful, on the last day of the
Interest Period currently applicable to such Eurodollar Loans; in
all other cases, such notice shall be effective on the date of
receipt by WGRC.
SECTION 4.06. Indemnity. WGRC shall compensate each
Bank, upon written request by that Bank (which request shall set
forth in reasonable detail the basis for requesting such amounts)
for all reasonable losses, expenses and liabilities (including any
interest paid by the Bank to lenders of funds borrowed by it to
make its Eurodollar Loans and any loss sustained by that Bank in
connection with the re-employment of such funds but excluding
taxes, which are not covered by this Section 4.06), which that Bank
may sustain with respect to Eurodollar Loans: (a) if for any
reason (other than a default or error by that Bank) a Eurodollar
Loan does not occur on a date specified therefor in the related
Notice of Borrowing or (b) if any payment or conversion, including,
without limitation, under Section 2.05, Section 2.07 or Section
2.09 hereof, of any such Bank's Eurodollar Loans occurs on a date
which is not the last day of the Interest Period applicable to such
Eurodollar Loan or on any date specified in a notice of payment
given by WGRC. All payments owing by WGRC under this Section 4.06
shall be made subject to the terms of Sections 9.07(c) and 9.08
hereof.
SECTION 4.07. Pro Rata Treatment. Each repayment of
principal and interest on the Revolving Loans, each payment of the
Non-Usage Fee, the L/C Fee, each reduction of the Commitments and
each conversion of any Borrowing to a Borrowing of another Type or
with a different Interest Period shall be allocated pro rata among
the Banks in accordance with their respective Pro Rata Shares
(except with respect to L/C Fees in connection with Departing
Banks, as provided in Section 4.02(a) hereof, and as set forth in
Sections 2.04(b) and 3.06(b)(ii) hereof). Each Bank agrees that in
computing such Bank's portion of any Borrowing to be made
hereunder, the Facility Agent may, in its discretion, round each
Bank's percentage of such Borrowing, computed in accordance with
Section 2.02, to the next higher or lower whole dollar amount. If
any Bank shall, through the exercise of a right of banker's lien,
set-off, counterclaim or otherwise, obtain payment with respect to
its Revolving Loans which results in its receiving more than its
Pro Rata Share of any payments described above or more than its
priority share of any payments to be made to it under Section 9.07
or 9.08 as applicable, then (A) such Bank shall be deemed to have
simultaneously purchased from each of the other Banks a share in
such other Banks' Revolving Loans so that the amount of the
Revolving Loans of all Banks shall be pro rata as otherwise set
forth above, (B) such Bank shall immediately pay to the other Banks
their Pro Rata Share of the payments otherwise received as
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consideration for such purchase and (C) such other adjustments
shall be made from time to time as shall be equitable to insure
that all Banks share such payments ratably or according to the
priority set forth in such Section 9.07 or 9.08. If all or any
portion of any such excess payment is thereafter recovered from the
Bank which received the same, the purchase provided in this Section
4.07 shall be deemed to have been rescinded to the extent of such
recovery, without interest. WGRC expressly consents to the
foregoing arrangements and agrees that each Bank so purchasing a
portion of another Bank's loan may exercise all rights of payment
(including, without limitation, all rights of set-off, banker's
lien or counterclaim) with respect to such portion as fully as if
such Bank were the direct holder of such portion.
SECTION 4.08. Taxes. WGRC agrees that:
(i) Any and all payments by WGRC under this Agreement
shall be made free and clear of and without deduction for any and
all current or future taxes, stamp or other taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with
respect thereto, excluding taxes imposed on the net income of,
franchise taxes imposed on, and taxes (other than withholding
taxes) imposed on the gross receipts or gross income of the
Facility Agent, the Collateral Agent, the Issuing Bank or any Bank
by the United States or by any jurisdiction under whose laws the
Facility Agent, the Collateral Agent, the Issuing Bank or any such
Bank is organized or in which the office through which it makes its
Revolving Loans or issues Letters of Credit is located or any
political subdivision of any such jurisdiction (all such
nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as
"Taxes"). If WGRC shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Bank, the
Issuing Bank, the Collateral Agent or the Facility Agent, then the
sum payable shall be increased by the amount necessary to yield to
the Facility Agent, the Collateral Agent, the Issuing Bank or such
Bank (after payment of all Taxes) an amount equal to the sum it
would have received had no such deductions been made.
(ii) Whenever any Taxes are payable by WGRC, or whenever
any Agent, Issuing Bank or Bank has notified WGRC that such Person
has paid or owes any Taxes payable by WGRC under this Section 4.08,
as promptly as possible thereafter, WGRC shall send to the Facility
Agent for its own account or for the account of any Bank, the
Issuing Bank or the Collateral Agent, as the case may be, a
certified copy of an original official receipt showing payment
thereof or such other evidence of such payment as may be available
to WGRC and acceptable to the taxing authorities having
jurisdiction over such Agent, the Issuing Bank or such Bank, as
applicable. If WGRC fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Facility
Agent the required receipts or other required documentary evidence,
(a) the applicable Agent, Issuer or Bank may pay such Taxes on
behalf of WGRC, and (b) WGRC shall indemnify the Agents, the
Issuers and the Banks, as applicable, for such Taxes, for any
incremental taxes, interest or penalties that may become payable by
such party as a result of any such failure, and for reasonable
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counsel fees and out-of-pocket expenses arising from any such
failure.
(iii) On or before the date it becomes a party to this
Agreement and on any extension of its Commitment, each Bank (and,
to the extent applicable, the Issuing Bank and any Agent) that is
organized under the laws of a jurisdiction outside the United
States shall deliver to WGRC such certificates, documents or other
evidence, as required by the Internal Revenue Code or Treasury
Regulations issued pursuant thereto, including (i) two original
copies of Internal Revenue Service Form 1001 or Form 4224 or
successor applicable form, properly completed and duly executed by
such Bank, the Issuing Bank or such Agent certifying in each case
that such party is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes, and (ii) an original copy of Internal Revenue
Service Form W-8 or W-9 (or applicable successor form) properly
completed and duly executed by such party.
(iv) Any obligation of WGRC to pay any additional amounts
to any Bank, the Issuing Bank or any Agent in respect of United
States Federal withholding tax pursuant to this Section 4.08 shall
be net of any credits in respect of other tax liabilities of such
Person which credits relate to or result from such withholding tax
(as determined by such Person in its reasonable discretion, it
being understood that nothing in this Agreement shall impose any
duty on any Bank to disclose its internal tax records as a
condition to reimbursement under this Section).
(v) Any Bank (or as applicable, the Issuing Bank or any
Agent) claiming any additional amounts payable pursuant to this
Section 4.08 shall use reasonable efforts (consistent with legal
and regulatory restrictions) to take any action to avoid or
minimize any amounts that otherwise may be payable by WGRC pursuant
to this Section 4.08, including filing any certificate or document
or changing the jurisdiction of its applicable office from which it
funds any Revolving Loans or issues Letters of Credit, provided
that such action would not, in the good faith determination of the
applicable affected party, be otherwise disadvantageous to it.
(vi) Notwithstanding the foregoing, WGRC shall not be
required to make any payments nor indemnify any Bank, the Issuing
Bank or any Agent under this Section 4.08 with respect to any Taxes
paid by such Bank, the Issuing Bank or such Agent more than ninety
(90) days before the date a request for payment or indemnification
is delivered to WGRC (it being understood that the date of payment
of such Taxes, and not the time period to which such Taxes may
relate, shall begin the running of the ninety (90) day period
described above).
(vii) All payments owing by WGRC under this Section 4.08
shall be made subject to the terms of Sections 9.07(c) and 9.08
hereof.
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ARTICLE V
CONDITIONS OF REVOLVING LOANS AND LETTERS OF CREDIT
SECTION 5.01. Conditions Precedent to Initial Borrowing
or Letter of Credit. The obligation of the Banks to make their
initial Revolving Loans hereunder and the obligation of the Issuers
to issue any Letters of Credit hereunder are each subject to satis-
faction of the conditions precedent that the Facility Agent shall
have received, on or before the Effective Date, all of the
following, each fully executed by all signatories thereto (where
applicable) and in form and substance satisfactory to the Facility
Agent;
(i) this Agreement;
(ii) the Revolving Notes;
(iii) the Receivables Sale Agreement;
(iv) certificates of the Secretaries or Assistant
Secretaries of WGRC and each Initial Seller, certifying in
each case (A) the names and true signatures of the officers
authorized to sign the Facility Documents to be delivered by
such party pursuant hereto or thereto (on which certificate
the Agents and the Banks may conclusively rely until such time
as the Facility Agent shall receive a revised certificate
meeting the requirements of this clause (iv)(A)), (B) that
attached thereto is a true and complete copy of the
certificate or articles of incorporation and by-laws of such
corporation as in effect on the date of such certification and
(C) that attached thereto are true and complete copies of
resolutions by such corporation's Board of Directors approving
the execution, delivery and performance of the Receivables
Sale Agreement and all other Facility Documents to which such
corporation is a party;
(v) a certificate executed by an officer of WGRC
certifying that as of the Effective Date, all of the represen-
tations and warranties contained in Article VI hereof are true
and accurate in all respects with the same force and effect as
though such representations and warranties had been made as of
such time;
(vi) a certificate executed by an officer of each Initial
Seller certifying that as of the Effective Date, all of the
representations and warranties contained in Article III of the
Receivables Sale Agreement are true and accurate in all
respects with the same force and effect as though such
representations and warranties had been made as of such time;
(vii) a copy of WGRC's Certificate of Incorporation,
certified by the Secretary of State of Delaware;
(viii) a copy of the Certificate of Incorporation or other
corporate charter documents for each Initial Seller, certified
by the appropriate Secretary of State or Commonwealth;
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(ix) certificates relating to the good standing of WGRC,
Wyman and the other Initial Sellers from the Secretaries of
State of the States in which each such Person has its chief
executive office or inventory;
(x) copies of UCC lien search reports, dated a date
reasonably close to the Effective Date, disclosing no
effective financing statements or other instruments on file
with respect to the Collateral except for (i) those in favor
of the Collateral Agent and (ii) financing statements which
will be terminated as of the Effective Date;
(xi) copies of UCC financing statements, in form and
substance satisfactory to the Facility Agent, as filed with
the appropriate offices deemed necessary by the Facility Agent
to perfect (A) the transfers of interests in Purchased Assets
under the Receivables Sale Agreement and (B) the grant of
security in the Collateral under this Agreement;
(xii) evidence that any financing statements described in
clause (x) above filed in favor of any Person other than the
Collateral Agent have been (or will be, concurrently with the
initial Funding Date or issuance of L/Cs hereunder)
terminated;
(xiii) favorable opinions of Goodwin, Procter & Hoar, and
Sidley & Austin, counsel for Wyman and WGRC, in form and
substance satisfactory to the Agents, the Banks and to the
Rating Agency, including, without limitation, opinions as to
enforceability and the perfection under the UCC of the Liens
in the Receivables created in favor of WGRC and Liens in the
Collateral created in favor of the Banks as described in
clause (xi) above, together with a favorable memorandum from
Sidley & Austin, counsel for Wyman and WGRC, in form and
substance satisfactory to the Agents, the Banks and to the
Rating Agency, relating to the priority of the Liens described
above;
(xiv) a favorable opinion of Goodwin, Procter & Hoar,
counsel for Wyman and WGRC, in form and substance satisfactory
to the Agents, the Banks and to the Rating Agency, including,
without limitation, opinions as to true sale and substantive
consolidation issues relating to the treatment of the
Receivables purchased by WGRC as property of WGRC in the event
of a bankruptcy of any Seller;
(xv) a favorable opinion of Wallace F. Whitney, Jr., Vice
President, General Counsel and Clerk of Wyman, in form and
substance satisfactory to the Agents, the Banks and to the
Rating Agency, including, without limitation, opinions as to
corporate organization, authority, execution and the absence
of conflict;
(xvi) a rating letter from the Rating Agency indicating a
rating of not less than AAA with respect to the payment of
principal and non-default interest under the Facility;
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(xvii) a letter from Ernst & Young, satisfactory in form
and substance to the Facility Agent, with respect to the
information contained in the Information Memorandum relating
to the Receivables;
(xviii) Lock-Box Agreements executed by the Sellers, WGRC
and each Lock-Box Bank;
(xix) such sublicenses and assignments as the Facility
Agent shall require with regard to all computer and data
recovery programs licensed to any Seller and/or WGRC and used
in the collection of the Receivables;
(xx) evidence of the capitalization of WGRC in accordance
with the terms of the Receivables Sale Agreement and this
Agreement;
(xxi) evidence of the payment in full of all fees owing
to the Banks as of the Effective Date; and
(xxii) such other documents and instruments as the
Facility Agent may reasonably request relating to the Facility
Documents and the transactions contemplated hereby.
SECTION 5.02. Conditions Precedent to Each Revolving
Loan and Letter of Credit. The obligation of the Banks to make any
Revolving Loans on any day (including those comprising the initial
Borrowing) and the obligation of the Issuers to issue, extend or
renew any Letters of Credit on any day shall be subject to the
Facility Agent's receipt of the Daily Report for such day and to
the conditions precedent that on the Funding Date of such Borrowing
or the issuance date or applicable date with respect to the
extension or renewal of such Letter of Credit, before and after
giving effect thereto and to the application of any proceeds there-
from, the following statements shall be true:
(i) the representations and warranties contained in
Article VI hereof and all representations and warranties of
the Sellers in the Receivables Sale Agreement (except for
representations and warranties which speak as of a specific
date only), are true and accurate as of such date in all
material respects with the same force and effect as though
such representations and warranties had been made as of such
time;
(ii) no event has occurred and is continuing, or would
result from such Borrowing, issuance, extension or renewal,
which constitutes a Liquidation Event or an Unmatured
Liquidation Event;
(iii) the Aggregate Net Outstandings, after giving
effect to any such Revolving Loan or the issuance, extension
or renewal of any such Letter of Credit, shall not be greater
than the Base Amount;
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(iv) the Aggregate L/C Amount, after giving effect to
the issuance, extension or renewal of any such Letter of
Credit, shall not be greater than the L/C Facility Sub-Amount;
and
(v) the sum of the Aggregate Loan Amount and the
Aggregate L/C Amount, after giving effect to any such
Revolving Loan or the issuance, extension or renewal of
any such Letter of Credit, shall not be greater than the
Facility Amount.
Each of (i) the giving of the applicable Notice of Borrowing and
the acceptance by WGRC of the proceeds of any such Borrowing and
(ii) the request by WGRC for issuance, extension or renewal of a
Letter of Credit and delivery of such Letter of Credit to WGRC or
to the beneficiary designated by WGRC, shall each constitute a
representation and warranty by WGRC that, as of the Funding Date or
issuance date, as applicable, before and after giving effect to any
such Borrowing or issuance, extension or renewal and to the
application of any proceeds therefrom, the foregoing statements are
true.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of WGRC.
WGRC represents and warrants that:
(a) Organization; Qualification. WGRC is a corporation
duly organized, validly existing and in good standing under the
laws of the state of Delaware. WGRC has all governmental licenses,
authorizations, consents and approvals required to carry on its
business, to do business as a foreign corporation and is in good
standing in each jurisdiction in which its business is now
conducted, except where the absence of such licenses,
authorizations, consents, approvals or good standing would not have
a Material Adverse Effect.
(b) Corporate Authority. WGRC has corporate power and
authority to execute and deliver this Agreement, to borrow money
and to grant a security interest hereunder, to execute and deliver
the Facility Documents to which it is a party and to perform its
obligations hereunder and thereunder and all such action has been
duly and validly authorized by all necessary corporate proceedings
on its part.
(c) Execution; Binding Effect. This Agreement and each
of the other Facility Documents to which WGRC is a party have been
duly and validly executed and delivered by WGRC and constitute the
legal, valid and binding obligations of WGRC enforceable against
WGRC in accordance with their respective terms.
(d) Authorizations. No authorization or approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body, agency, official or other Person is
required for the due execution, delivery and performance by WGRC of
this Agreement, any other Facility Document or any other agreement,
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document or instrument delivered hereunder or thereunder except for
the filing of financing statements pursuant to the UCC required to
perfect the security and/or ownership interests granted hereunder,
under the Receivables Sale Agreement (all of which filings have
been duly made and are, and on or prior to each Purchase, will be,
in full force and effect), and for other consents which have been
duly obtained. No transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
(e) Absence of Conflicts. Neither the execution and
delivery of this Agreement or any other Facility Document to which
WGRC is a party, nor consummation of the transactions herein or
therein contemplated nor performance of or compliance with the
terms and conditions hereof or thereof will (a) violate or conflict
with any law, rule or regulation applicable to WGRC or any of its
properties, (b) violate, conflict with or result in a breach of or
a default under (i) the Certificate of Incorporation or By-laws of
WGRC, (ii) any agreement or instrument to which WGRC is a party or
by which it or any of its properties (now owned or hereafter
acquired) may be subject or bound or (iii) any order, writ,
judgment, award, injunction or decree binding on or affecting WGRC
or its property (now owned or hereafter acquired) or (c) except for
Liens created pursuant to the Facility Documents, result in the
creation or imposition of any Lien in favor of any other party upon
any property (now owned or hereafter acquired) of WGRC.
(f) Perfected Security Interest. Upon the making of the
initial Revolving Loan and/or the issuance of the initial Letter of
Credit hereunder, and at all times from the Effective Date through
the Collection Date, the Banks will have a legal, valid, perfected
and enforceable Lien upon and security interest in the Collateral
which Lien and security interest is prior in right to all other
Liens thereon (except Permitted Liens) and such Collateral shall
not be subject to any other Liens (except for Permitted Liens).
(g) Consideration for Purchases by WGRC. WGRC shall
have given reasonably equivalent value to the Sellers in
consideration for the transfer to WGRC of the Receivables and
Related Security under the Receivables Sale Agreement and no such
transfer shall have been made for or on account of an antecedent
debt owed by any Seller to WGRC.
(h) Accuracy of Information. All written information,
exhibits, documents, records, Daily Reports, Settlement Statements,
certificates, reports, financial statements and similar writings
(including, without limitation, the Information Memorandum)
(collectively, the "Written Information") furnished by WGRC to the
Facility Agent or the Banks at any time pursuant to any requirement
of, or in response to any request of any such party under, this
Agreement or any other Facility Document or any transaction
contemplated hereby or thereby, have been, and all such Written
Information hereafter furnished by WGRC to such parties will be,
true and accurate in all material respects on the date as of which
any such Written Information was or will be delivered, and shall
not omit to state any material facts or any facts necessary to make
the statements contained therein not materially misleading in light
of the circumstances under which they were made.
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(i) Litigation. There are no actions, suits or
proceedings at law or in equity or by or before any governmental
authority now pending or, to the knowledge of WGRC, threatened
against or affecting WGRC or any property or rights of WGRC which
purport to challenge the legality, validity or enforceability of
this Agreement or any other Facility Document or which may
materially impair the ability of WGRC to carry on business substan-
tially as now being conducted or which may materially adversely
affect the condition (financial or otherwise), operations or
properties of WGRC.
(j) Governmental Regulations. WGRC is not a "holding
company", nor a "subsidiary company" or "affiliate" thereof, within
the meaning of the Public Utility Holding Company Act of 1935, as
amended, and WGRC is not an "investment company" registered or
required to be registered under the Investment Company Act of 1940,
as amended, or otherwise subject to any other similar federal or
state statute or regulation limiting its ability to incur
indebtedness.
(k) Margin Regulations. WGRC is not engaged,
principally or as one of its important activities, in the business
of extending credit for the purpose of "purchasing" or "carrying"
any "margin stock" (as each of the quoted terms is defined or used
in Regulation G, T, U or X). No part of the proceeds of any of the
Revolving Loans has been used for so purchasing or carrying margin
stock or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation G, T, U or X.
(l) Separate Corporate Existence. WGRC is operated as an
entity with assets and liabilities distinct from those of the
Sellers and any other Affiliates of WGRC, and WGRC hereby
acknowledges that the Agents and the Banks are entering into the
transactions contemplated by this Agreement in reliance upon WGRC's
identity as a separate legal entity from each Seller and each such
Affiliate. Since its incorporation, WGRC has been (and will be)
operated in such a manner as to comply with the covenants set forth
in Section 7.09.
(m) Investments. WGRC has no Investments other than
Permitted Investments and does not own or hold, directly or
indirectly, any capital stock or equity security of, or any equity
interest in, any Person.
(n) Facility Documents. The Receivables Sale Agreement
is the only agreement pursuant to which WGRC purchases Receivables
or any other accounts receivable, and the Facility Documents
delivered to the Facility Agent represent all material agreements
between any Seller, on the one hand, and WGRC on the other. WGRC
has furnished to the Facility Agent true, correct and complete
copies of each Facility Document to which WGRC is a party, each of
which is in full force and effect. Neither WGRC nor any Affiliate
party thereto is in default of any of its obligations thereunder in
any material respect. Upon the Purchase of each Receivable
pursuant to the Receivables Sale Agreement, WGRC shall be the
lawful owner of, and have good title to, such Receivable and all
Purchased Assets relating thereto, free and clear of any Liens
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(except for Liens created hereunder and Permitted Liens). All such
Purchased Assets are purchased without recourse to the Sellers
except as described in the Receivables Sale Agreement. The
Purchases of the Purchased Assets by WGRC constitute valid and true
sales and transfers for consideration (and not merely a pledge of
such Purchased Assets for security purposes), enforceable against
creditors of the Sellers, and no Purchased Assets shall constitute
property of any Seller.
(o) Business. Since its incorporation, WGRC has
conducted no business other than the purchase of Receivables and
related assets from the Sellers under the Receivables Sale
Agreement, the incurrence of Indebtedness under this Agreement to
finance such Purchases, and such other activities as are incidental
to the foregoing.
(p) Lock-Box Accounts. The names and addresses of all
the Lock-Box Banks, together with the account numbers of the Lock-
Box Accounts, are set forth on Exhibit 6.01(p) hereto (or as
hereafter notified to the Facility Agent in accordance with Section
8.11), and each Lock-Box Bank has executed a Lock-Box Agreement.
All Obligors have been instructed to remit payment on the
Receivables to a Lock-Box Account or, via wire transfer, directly
to the Collection Account.
(q) Ownership of WGRC. One hundred percent (100%) of
the outstanding capital stock of WGRC is directly owned (both
beneficially and of record) by the Sellers. Such stock is validly
issued, fully paid and nonassessable and there are no options,
warrants or other rights to acquire capital stock from WGRC.
(r) Taxes. WGRC has filed or caused to be filed all
Federal, state and local tax returns which are required to be filed
by it, and has paid or caused to be paid all taxes shown to be due
and payable on such returns or on any assessments received by it,
other than any taxes or assessments, the validity of which are
being contested in good faith by appropriate proceedings and with
respect to which WGRC has set aside adequate reserves on its books
in accordance with GAAP and which proceedings would not have a
Material Adverse Effect.
(s) Locations. The principal place of business and
chief executive office of WGRC are located at its address set forth
in Exhibit 7.08 hereto and the locations of the offices where the
Records and computer software are kept are listed on such exhibit
(or at such other locations, notified to the Facility Agent in
accordance with Section 7.08, with respect to which all action
required by such Section 7.08 has been taken and completed).
(t) Other Names. During the past five years WGRC has had
no trade names, fictitious names, assumed names, "doing business
as" names or other names under which it has done or is doing
business.
(u) Solvency. On the Effective Date, on each Funding
Date and on the date of each issuance of a Letter of Credit
hereunder, WGRC: (i) is not "insolvent" (as such term is defined
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in Secion 101(32)(A) of the Bankruptcy Code, (ii) is able to pay its
debts as they mature; and (iii) 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.
(v) Software. Except as set forth in the Receivables
Sale Agreement, WGRC and the Collateral Agent, as assignee of WGRC,
each has (or will have, concurrently with the effectiveness hereof)
an enforceable right (whether by license, sublicense or assignment)
to use all of the computer software used to account for the
Receivables to the extent necessary to administer the Receivables.
ARTICLE VII
AFFIRMATIVE COVENANTS
WGRC covenants and agrees that, until the expiration or
termination of the Commitments and thereafter until the Collection
Date, unless the requisite Banks required under Section 12.01 shall
otherwise consent in writing, it will:
SECTION 7.01. Reports; Certificates; Other Information.
Furnish or cause to be furnished to the Facility Agent, in
sufficient copies to be forwarded to each Bank (or when stated, to
the Facility Agent only) (and, with respect to the reports
described in Section 7.01(c) and 7.01(g)(i), with a copy thereof to
the Rating Agency):
(a) Annual Reports. As soon as available and in any
event within one-hundred five (105) days after the end of each
fiscal year of WGRC, a copy of the annual statements of income
and cash flows of WGRC for such fiscal year and the related
balance sheet as at the end of such fiscal year, setting forth
in each case in comparative form the corresponding figures for
the preceding fiscal year and prepared in accordance with GAAP
consistently applied (except for such changes in application
which are approved by WGRC's independent public accountants
and disclosed therein), accompanied by an unqualified opinion
from Ernst & Young or other independent certified public
accountants of recognized national standing selected by WGRC
or otherwise reasonably acceptable to the Facility Agent
(which accountants may also provide services to Wyman and
Wyman's other Subsidiaries), together with a certificate from
WGRC's independent public accountants confirming that, in
conducting such audit, nothing came to their attention which
caused them to believe that WGRC was not in compliance with
this Agreement insofar as it relates to accounting matters,
with the understanding that such audit was not directed
primarily toward obtaining knowledge of such noncompliance;
(b) Quarterly Reports. As soon as available and in any
event within sixty (60) days after the end of the first three
fiscal quarters of each fiscal year of WGRC, a copy of (A) the
unaudited statement of income and cash flows of WGRC for such
fiscal quarter and for the period from the beginning of the
respective fiscal year to the end of such fiscal quarter; and
(B) an unaudited balance sheet of WGRC as at the end of such
fiscal quarter; setting forth in each case in comparative form
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the corresponding figures for the preceding fiscal year and
all of the foregoing to be prepared in accordance with GAAP
consistently applied (except for such changes in application
which are approved by WGRC's financial officer preparing such
statements and disclosed therein);
(c) Annual Accountants' Report. Within one-hundred five
(105) days after the end of each fiscal year of WGRC, a report
with respect to the Facility Documents by Ernst & Young or any
other firm of nationally recognized independent accountants
reasonably acceptable to the Facility Agent (who may also
render other services to WGRC, Wyman on their Affiliates);
provided, however, that if the Liquidation Period shall have
occurred by reason of an event described in clause (ii),
(iii), (iv) or (v) of the definition thereof, then the
Majority Banks may direct WGRC to replace such accountants
with another firm of nationally recognized independent
accountants selected by the Majority Banks and reasonably
acceptable to WGRC. Each such report shall set forth the
procedures performed, which procedures shall be substantially
in compliance with the agreed upon procedures described in the
letter delivered pursuant to Section 5.01(xvii);
(d) Certificates. Contemporaneously with the furnishing
of a copy of each annual and quarterly report provided for in
subsections 7.01(a) and (b), respectively, a certificate dated
the date of delivery and signed by a Responsible Officer of
WGRC, which certificate shall state that said financial
statements fairly present the financial position and results
of operations of WGRC in accordance with GAAP consistently
applied (except for such changes in application which are
approved by WGRC's independent public accountants or, in the
case of the quarterly reports, by such officer and further
subject to normal year-end adjustments) and that such
Responsible Officer has reviewed the relevant terms of this
Revolving Credit Agreement and has made, or caused to be made
under such Responsible Officer's supervision, a review of
WGRC's activities during the period covered by the statements
then being furnished, and that the review has not disclosed
the existence of a Liquidation Event or Unmatured Liquidation
Event, or if there is such an event, describing it and the
steps, if any, taken or being taken to cure it;
(e) Notice of Liquidation Event and Litigation. As soon
as possible and in any event within two Business Days upon
learning of the occurrence of any of the following, written
notice thereof (with a copy concurrently sent to the Rating
Agency), describing the same and the steps being taken by WGRC
with respect thereto: (a) a Liquidation Event or Unmatured
Liquidation Event, or (b) the institution against WGRC of, or
any adverse determination in, any litigation, arbitration
proceeding or governmental proceeding;
(f) ERISA Events. Promptly after the filing or
receiving thereof, copies of all reports and notices with
respect to any Reportable Event defined in Article IV of ERISA
(other than any such Reportable Event for which the Pension
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Benefit Guaranty Corporation has waived the 30-day notice
requirement) which WGRC or any ERISA Affiliate files under
ERISA with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or which
WGRC or any ERISA Affiliate receives from the Pension Benefit
Guaranty Corporation;
(g) Reports under Receivables Sale Agreement. Promptly
upon receipt thereof, copies of (i) all annual and quarterly
financial statements and monthly Settlement Statements
delivered to WGRC by the Sellers or by the Servicer pursuant
to the Receivables Sale Agreement (each such Settlement
Statement to be delivered no later than the Business Day of
WGRC's receipt but in no event later than the applicable
Reporting Date) and (ii) (to the Facility Agent only) all
Daily Reports (to be delivered no later than the Business Day
of WGRC's receipt) and all other reports and other written
information not specified above which are required to be
delivered by the Sellers or the Servicer to WGRC pursuant to
the terms of the Receivables Sale Agreement; and
(h) Bi-Annual Legal Opinions. On or within thirty (30)
days prior to the second anniversary of the Effective Date,
and on each successive second anniversary of such date, a
legal opinion, in form and substance reasonably satisfactory
to the Facility Agent, that the ownership interests of WGRC in
the Receivables and the security interests of the Collateral
Agent in the Collateral, to the extent they may be perfected
by financing statements, remain perfected.
(i) Other Information. Promptly, from time to time,
such other information, documents, records or reports
respecting the Purchased Assets, including, without
limitation, the Receivables, or the condition or operations,
financial or otherwise, of WGRC, any Agent or any Bank or
their respective agents or representatives may from time to
time reasonably request.
SECTION 7.02. Inspection. At any time and from time to
time during WGRC's normal business hours, with reasonable notice,
permit the Facility Agent, its permitted assigns, or their
respective agents or representatives, (i) to examine and make
copies of and abstracts from all books, records and documents
(including, without limitation, computer tapes and discs) in the
possession or under the control of WGRC relating to the Receivables
or the other Purchased Assets, and (ii) to visit the offices and
properties of WGRC for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to
the Receivables or the other Purchased Assets, or WGRC's perform-
ance hereunder with any of the officers or employees of WGRC having
knowledge of such matters. WGRC agrees that representatives from
the other Banks shall be permitted to accompany the Facility Agent
on any such inspection or visit and to participate in any such
discussion. WGRC agrees to instruct its independent accountants to
cooperate with any reasonable request of the Facility Agent, its
permitted assigns, or their respective agents or representatives,
in connection with the performance of such accountants' routine
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verification procedures with respect to the Receivables or the
other Collateral. The Facility Agent, its assigns, agents or
representatives, shall also be permitted to verify the validity,
amount or any other matter relating to any Receivable; provided,
however, that none of the Facility Agent, the Banks nor their
respective assigns shall, unless a Liquidation Event has occurred
and is continuing, notify any or all of the Obligors of the
security interests granted hereunder or direct such Obligors to
make payments under any Receivables directly to the Banks or their
designees. Without limiting the foregoing, WGRC shall, from time
to time during WGRC's normal business hours, upon request of the
Facility Agent (or its permitted assigns, or their respective
agents, or representatives), permit certified public accountants or
other auditors selected by the Person making such request to
conduct, a review of WGRC's books and records relating to the
Purchased Assets and the Facility Documents; provided that unless a
Liquidation Event has occurred and is continuing such review shall
not be conducted more than twice during any calendar year,
provided, however, that an additional review of each new Seller
added to the Facility pursuant to Section 2.06 of the Receivables
Sale Agreement may be conducted during such calendar year and shall
not be counted towards such limit. The costs and expenses of the
first such review of WGRC's books and records in any calendar year
and the initial review of any new Seller during such calendar year
shall not exceed $20,000 for each such review (subject to an annual
increase at the Facility Agent's election for any subsequent review
not to exceed 5% in any year and provided that the costs and
expenses for the initial review of Cameron shall not exceed
$12,500) and shall be borne by the Servicer as part of its duties
which are compensated by the Servicer Fee, and the costs and
expenses of any further reviews in any calendar year shall be borne
by the Banks ratably in accordance with their Pro Rata Shares;
provided that after the occurrence and during the continuation of a
Liquidation Event, all such reviews shall be borne by the Servicer
as part of its duties which are compensated by the Servicer Fee.
Upon the request of the Facility Agent, WGRC shall exercise
inspection, audit and other rights provided for in the Receivables
Sales Agreement, with respect to review and access to the Records
of any Seller and the furnishing of information by such Seller
relating to such Receivables.
SECTION 7.03. Books and Records of WGRC. Maintain and
implement administrative and operating procedures reasonably
necessary in the performance of its obligations hereunder (includ-
ing, without limitation, an ability to recreate records evidencing
the Receivables in the event of the destruction of the originals
thereof), and keep and maintain at all times, or cause to be kept
and maintained at all times, all documents, books, records,
accounts and other information relating to the Receivables and the
Purchased Assets reasonably necessary or advisable for the
collection of all Receivables (including, without limitation,
records adequate to permit the daily identification of each
Receivable and all collections of and reductions or adjustments to
each Receivable).
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SECTION 7.04. Corporate Existence. Observe all
corporate procedures required by its Certificate of Incorporation
and By-Laws and do or cause to be done all things necessary to
preserve and maintain its corporate existence, good standing
(except where the failure to be in good standing would not have a
Material Adverse Effect), material rights, licenses, permits and
franchises.
SECTION 7.05. Compliance with Laws. Comply in all
material respects with all applicable laws, rules, regulations,
writs, judgments, injunctions, decrees, awards and orders with
respect to it, its business and properties.
SECTION 7.06. Obligations and Taxes. Pay all its
indebtedness and obligations promptly and in accordance with their
terms and pay and discharge promptly all taxes, assessments and
governmental charges or levies imposed upon it or in respect of its
property, before the same shall become in default, as well as all
lawful claims for labor, materials and supplies or otherwise which,
if unpaid, might become a Lien or charge upon such properties or
any part thereof (except such indebtedness, obligations, taxes,
assessments, governmental charges and levies and claims being
contested in good faith by appropriate proceedings and for which
WGRC has set aside adequate reserves therefor).
SECTION 7.07. Facility Documents. Comply in all
material respects with the terms of and employ the procedures
outlined in and enforce the obligations of the Sellers and the
Servicer under the Receivables Sale Agreement, and all of the other
Facility Documents to which it is a party.
SECTION 7.08. Location of Records. Keep its principal
place of business and chief executive office, and the offices where
it keeps its books, records and documents concerning the
Receivables (including all original documents relating thereto) at
the addresses specified in Exhibit 7.08 hereto, or, upon thirty
days' prior written notice to the Facility Agent, at such other
locations in the United States where all action required to
maintain the perfection of WGRC's ownership interest in the
Purchased Assets and the Banks' security interests in the
Collateral shall have been taken and completed. WGRC shall, in the
case of any change in its principal place of business and chief
executive office, WGRC shall also provide, prior to such change, an
opinion of counsel as to continued perfection of such security
interests.
SECTION 7.09. Separate Corporate Existence. WGRC shall
take all reasonable steps (including, without limitation, all steps
that the Facility Agent may from time to time reasonably request)
to maintain WGRC's identity as a separate legal entity from each
Seller and to make it manifest to third parties that WGRC is an
entity with assets and liabilities distinct from those of each
Seller and each other Affiliate thereof. Without limiting the
generality of the foregoing and in addition to and consistent with
the covenants set forth in Sections 7.04 and 7.07, WGRC shall:
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(i) conduct all of its business, and make all
communications to third parties (including all invoices (if
any) letters, checks and other instruments) solely in its own
name (and not as a division of any other Person), and require
that all employees of WGRC identify themselves as such and not
as employees of any other Affiliate of WGRC (including,
without limitation, by means of providing appropriate
employees with business or identification cards identifying
such employees as WGRC's employees);
(ii) compensate all employees, consultants and agents
directly, from WGRC's bank accounts, for services provided to
WGRC by such employees, consultants and agents and, to the
extent any employee, consultant or agent of WGRC is also an
employee, consultant or agent of any Affiliate of WGRC,
allocate the compensation of such employee, consultant or
agent between WGRC and such Affiliate on a basis which
reflects the services rendered to WGRC and such Affiliate;
(iii) pay its own operating expenses and liabilities from
its own funds, allocate all overhead expenses (including,
without limitation, telephone and other utility charges) for
items shared between WGRC and any Affiliate on the basis of
actual use to the extent practicable and, to the extent such
allocation is not practicable, on a basis reasonably related
to actual use and allocate taxes on the basis set forth in the
Tax Sharing Agreement;
(iv) at all times have at least one "Independent
Director" as defined in and as required under WGRC's
Certificate of Incorporation, have at least one officer
responsible for managing its day-to-day business and manage
such business by or under the direction of its board of
directors;
(v) maintain WGRC's books and records separate from
those of any Affiliate;
(vi) prepare its financial statements separately from
those of its other Affiliates and insure that any consolidated
financial statements of Wyman that include WGRC have detailed
notes to the effect that WGRC is a separate corporate entity
and that WGRC's creditors have a claim on its assets prior to
those assets becoming available to any creditors of any
Seller;
(vii) use its best efforts not to commingle funds or other
assets of WGRC with those of any other Affiliate, and not to
hold its assets in any manner that would create an appearance
that such assets belong to any other Affiliate, and will not
maintain bank accounts or other depository accounts to which
any Affiliate is an account party, into which any Affiliate
makes deposits or from which any Affiliate has the power to
make withdrawals;
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(viii) not permit any Affiliate to pay any of WGRC's
operating expenses (except pursuant to allocation arrangements
that comply with the requirements of subsection (iii) of this
Section 7.09 or pursuant to the terms of the Receivables Sale
Agreement);
(ix) not guarantee any obligation of any Affiliate nor
(to the extent that WGRC has the legal power to prevent such)
have any of its obligations guaranteed by any such Affiliate,
(either directly or by seeking credit based on the assets of
such Affiliate) or otherwise hold itself out as responsible
for the debts of any Affiliate;
(x) maintain at all times a separate telephone number and
separate stationery from that of any Affiliate which will be
answered in its own name, and have all its officers and
employees conduct all of its business solely in its own name;
(xi) not permit WGRC to be named as a direct or
contingent beneficiary or loss payee on any insurance policy
covering the property of any Affiliate and not name other
Affiliates as a direct or contingent beneficiary or loss payee
on its own insurance policies such that (A) in the event of a
loss in connection with such property, payments on account
thereof would be made to WGRC or would be jointly made to WGRC
and such Affiliate, or (B) payments on account of losses to
WGRC's property would be made to any Affiliates or would be
jointly made to WGRC and any Affiliates;
(xii) hold regular meetings of its board of directors in
accordance with the provisions of WGRC's Certificate of
Incorporation;
(xiii) maintain a separate office from the offices of any
of its Affiliates and identify such office by a sign in its
own name; and
(xiv) take such other actions as are necessary on its part
to ensure that the facts and assumptions set forth in the
opinion described in Section 5.01(xiv) remain true and correct
at all times.
ARTICLE VIII
NEGATIVE COVENANTS
WGRC covenants and agrees that, until the expiration or
termination of the Commitments and thereafter until the Collection
Date, unless the requisite Banks required under Section 12.01 shall
otherwise consent in writing, it will not, directly or indirectly:
SECTION 8.01. Liens; Sales of Collateral. Incur,
create, assume or permit to exist any Lien upon or with respect to
any property or assets now owned or hereafter acquired by WGRC
other than Permitted Liens and the Liens created under the Facility
Documents, or (except as expressly contemplated pursuant to the
Facility Documents) sell, convey, assign (by operation of law or
otherwise), transfer or otherwise dispose of any of the Collateral
or WGRC's right to receive income in respect thereof.
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SECTION 8.02. Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness except for (i) Indebtedness to the
Agents, the Banks and the Issuing Banks expressly contemplated
hereunder, (ii) Ordinary Course Expenses (to the extent, if any,
that such items constitute Indebtedness) and (iii) Indebtedness to
the Sellers pursuant to the Receivables Sale Agreement and the
Intercompany Notes; provided that (x) WGRC shall not increase the
principal amount outstanding under the Short-Term Notes if,
immediately after giving effect thereto, the aggregate outstanding
balances of the Short-Term Notes would exceed the limits set forth
in the Receivables Sale Agreement and (y) WGRC shall not increase
the principal amount outstanding under either the Short-Term Notes
or the Long-Term Notes if, immediately after giving effect thereto,
the aggregate outstanding balances of the Short-Term Notes and the
Long-Term Notes would exceed (i) Net Eligible Receivables minus
(ii) the Aggregate Net Outstandings minus (iii) the product of (a)
Net Eligible Receivables times (b) sixty percent (60%) of the Loss
Reserve Ratio, unless, in either such case, (A) the Majority Banks
have previously consented thereto in writing and (B) the Rating
Agency shall have confirmed its rating with respect to the Facility
notwithstanding such increase.
SECTION 8.03. Minimum Net Worth. WGRC shall at all
times maintain a minimum net worth (defined as the sum of (i) the
amount of its capital stock plus (ii) the amount of surplus and
retained earnings (or, in the case of a surplus or retained
earnings deficit, minus the amount of such deficit), in each case
determined in accordance with GAAP) of not less than the greater of
(1) $3,000,000 prior to the date Cameron becomes a Seller under the
Receivables Sale Agreement or $5,000,000 on any date thereafter or
(2) ten percent (10%) of the aggregate Outstanding Balance of all
Receivables.
SECTION 8.04. Guarantees. Guarantee, endorse or
otherwise be or become contingently liable (including by agreement
to maintain balance sheet tests) in connection with the obligations
of any other Person, except endorsements of negotiable instruments
for collection in the ordinary course of business and reimbursement
or indemnification obligations in favor of the Facility Agent or
the Banks as provided for under this Agreement.
SECTION 8.05. Limitation on Investments. Make any
Investment in any Person except for Permitted Investments.
SECTION 8.06. Limitation on Transactions with Affil-
iates. Enter into, or be a party to any transaction with any
Affiliate of WGRC, except for:
(i) the transactions contemplated by the Receivables
Sale Agreement; and
(ii) the transactions contemplated by the Company
Documents; and
(iii) to the extent not otherwise prohibited under this
Agreement, other transactions in the nature of employment con-
tracts and directors' fees, upon fair and reasonable terms
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materially no less favorable to WGRC than would be obtained in
a comparable arm's-length transaction with a Person not an
Affiliate.
SECTION 8.07. Facility Documents. Except as otherwise
permitted under Section 12.01, (a) amend or otherwise modify any
Facility Document to which it is a party, or grant any waiver or
consent thereunder or (b) designate a Termination Date if, at the
time of such designation, the Aggregate Net Outstandings exceed the
Base Amount, or (c) consent to any amendment or modification of the
Credit and Collection Policy; except that WGRC may, with prior
written notice to the Facility Agent, but without any prior written
consent, amend any Company Document, provided that any such
amendment shall be on fair and reasonable terms materially no less
favorable to WGRC than would be obtained in a comparable arm's-
length transaction with a Person not an Affiliate and such
amendment shall not be prohibited by, or otherwise adversely affect
WGRC's ability to comply with, Section 7.09.
SECTION 8.08. Charter and By-Laws. Amend or otherwise
modify its Certificate of Incorporation or Bylaws in any manner
which requires the consent of the "Independent Director" (as
defined in WGRC's Certificate of Incorporation) without the prior
written consent of the Facility Agent and reconfirmation by the
Rating Agency of its rating with respect to the Facility and
delivery of an opinion of counsel that such amendment shall not
alter the conclusions set forth in the legal opinion described in
Section 5.01(xiv). In addition, WGRC shall not make any change to
its corporate name unless (i) the Facility Agent and the Rating
Agency shall have received twenty (20) Business Days' prior written
notice of such name change and (ii) at least ten (10) Business Days
prior to the effective date of any such name change, WGRC shall
have executed and delivered to the Facility Agent (x) such
Financing Statements (Form UCC-1 and UCC-3) which the Facility
Agent may request to reflect such name change, together with such
other documents and instruments that the Facility Agent may request
in connection therewith and (y) an opinion of counsel as to
continued perfection of the security interests in the Collateral
following such change.
SECTION 8.09. Lines of Business. Conduct any business
other than that described in Section 6.01(o), enter into any
transaction with any Person which is not contemplated by or
incidental to the performance of its obligations under the Facility
Documents, or consolidate with or merge into any other Person, or
otherwise acquire or create any Subsidiaries.
SECTION 8.10. Bank Accounts. Maintain any bank accounts
other than the Collection Account, the Lock-Box Accounts and
checking accounts for payments of Ordinary Course Expenses.
SECTION 8.11. Lock-Box Banks; Change in Payment
Instructions to Obligors. (a) Make any changes in instructions to
Obligors directing payments other than to a Lock-Box Bank or, via
wire transfer, to the Collection Account, or (b) voluntarily add or
terminate any bank as a Lock-Box Bank from those listed in Exhibit
6.01(p) unless, with respect to the addition of any Lock-Box Bank,
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the Facility Agent shall have first received and approved, which
approval shall not be unreasonably withheld, (x) copies of Lock-Box
Agreements executed by each new Lock-Box Bank and WGRC and (y)
copies of all agreements and documents signed by WGRC (and, if
applicable, by a Seller) and the respective Lock-Box Bank with
respect to any new Lock-Box Account.
SECTION 8.12. Accounting Treatment. Prepare any
financial statements or other statements (including any tax filings
which are not consolidated with those of Wyman) which shall account
for the transactions contemplated by the Receivables Sale Agreement
in any manner other than as the sale of the Purchased Assets by the
Sellers to WGRC.
SECTION 8.13. ERISA Matters. WGRC will not (i) engage
or (to the extent it has the legal power to prevent such) permit
any ERISA Affiliate to engage in any prohibited transaction for
which an exemption is not available or has not previously been
obtained from the United States Department of Labor; (ii) permit to
exist any accumulated funding deficiency, as defined in
Section 302(a) of ERISA and Section 412(a) of the IRC with respect
to any Benefit Plan other than a Multiemployer Plan; (iii) fail to
make any payments to any Multiemployer Plan that WGRC or any ERISA
Affiliate may be required to make under the agreement relating to
such Multiemployer Plan or any law pertaining thereto; (iv) termi-
nate or (to the extent it has the legal power to prevent such)
permit any ERISA Affiliate to terminate any Benefit Plan which
could result in any liability of WGRC or any ERISA Affiliate under
Title IV of ERISA; or (v) permit to exist any occurrence of any
reportable event described in Title IV of ERISA which represents a
material risk of a liability of WGRC or (to the extent it has the
legal power to prevent such) any ERISA Affiliate under ERISA or the
Internal Revenue Code of 1986, as amended, if such prohibited
transactions, accumulated funding deficiencies, payments,
terminations and reportable events occurring within any fiscal year
of WGRC, in the aggregate, would be reasonably likely to result in
a Lien (other than a Permitted Lien) attaching to the Purchased
Assets and/or the other Collateral under Title IV of ERISA.
SECTION 8.14. Merger, Consolidation, Etc. Consolidate
with or merge into or with any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any
Person or sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to any Person, except as expressly
permitted under the terms of this Agreement.
ARTICLE IX
SECURITY INTEREST; ADMINISTRATION AND COLLECTION OF RECEIVABLES
SECTION 9.01. Grant of Security Interest. To secure the
prompt and complete payment when due of all Revolving Loans,
interest, fees, indemnities, Letter of Credit reimbursement
obligations, expenses and all other amounts owed hereunder or in
connection herewith (collectively, the "Obligations"), WGRC hereby
assigns and pledges to the Collateral Agent, for the benefit of the
Banks, a security interest in and Lien on all of WGRC's right,
title and interest in and to the following property, whether now
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owned or existing or hereafter arising or acquired and wheresoever
located (collectively, the "Collateral"):
(a) all Receivables, together with all Related Security,
Collections, Records and other Purchased Assets related
thereto;
(b) all right, title and interest of WGRC in, to and
under the Receivables Sale Agreement, including, without
limitation, all monies due and to become due to WGRC from the
Sellers or the Servicer under or in connection therewith,
whether as Receivables or fees, expenses, costs, indemnities,
insurance recoveries, damages for breach or otherwise, and all
rights, remedies, powers, privileges and claims of WGRC
against the Sellers and the Servicer under or with respect to
the Receivables Sale Agreement (whether arising pursuant to
the terms of the Receivables Sale Agreement or otherwise
available at law or in equity), including, without limitation,
(i) the right at any time to appoint a successor to the
Servicer as set forth therein, provided, however, that the
Collateral Agent's right to appoint a successor to the
Servicer shall arise only upon the occurrence of a Servicer
Termination Event and (ii) all licenses granted to WGRC by the
Sellers in connection with the administration and collection
of the Receivables;
(c) all right, title and interest of WGRC in, to and
under each of the other Facility Documents (excluding this
Agreement) (whether as an original party thereto, as assignee
or otherwise), including, without limitation, all monies due
and to become due to WGRC under or in connection with such
other Facility Documents, and all rights, remedies, powers,
privileges, benefits and claims of WGRC under or with respect
to such other Facility Documents (whether arising pursuant to
the terms of such Facility Documents or otherwise available at
law or in equity);
(d) the Collection Account, and all other bank and
similar accounts established for the benefit of the Collateral
Agent and/or the Banks, and all funds held therein or in such
other accounts, and all income from the investment of funds in
the Collection Account and such other accounts; and all
certificates and instruments, if any, from time to time
representing or evidencing the Collection Account or such
other accounts;
(e) all lock boxes, Lock-Box Accounts, and all other
bank and similar accounts relating to the collection of
Receivables and all funds held therein or in such other
accounts, and all income from the investment of funds in the
Lock-Box Accounts and such other accounts and all certificates
and instruments if any, from time to time in such lock boxes
or representing or evidencing the Lock-Box Accounts or such
other accounts;
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(f) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any and all of
the foregoing;
(g) all substitutions for and proceeds of any of the
foregoing and, to the extent not otherwise included, all
payments under insurance (whether or not the Collateral Agent
is the loss payee thereof) or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise
with respect to any of the foregoing.
Notwithstanding the foregoing, it is expressly understood and
agreed that any assignment and transfer to the Sellers of WGRC's
interest in returned or repossessed goods, which transfer is made
pursuant to the terms of Section 2.02(f) of the Receivables Sale
Agreement and subject to the payment requirements contemplated
thereunder, shall be made free and clear of any security interest
of the Collateral Agent in such goods.
SECTION 9.02. Continuing Liability of WGRC. The
security interests described above are granted as security only and
shall not subject the Facility Agent, the Collateral Agent, the
Issuing Bank or the Banks or their respective assigns to, or
transfer or in any way affect or modify, any obligation or lia-
bility of WGRC with respect to, any of the Collateral or any
transaction in connection therewith. None of the Facility Agent,
the Collateral Agent, the Issuing Bank nor the Banks nor their
respective assigns shall be required or obligated in any manner to
make any inquiry as to the nature or sufficiency of any payment
received by it or the sufficiency of any performance by any party
under any such obligation, or to make any payment or present or
file any claim, or to take any action to collect or enforce any
performance or the payment of any amount thereunder to which it may
be entitled at any time.
SECTION 9.03. Collection of Receivables. As of the
Effective Date, WGRC hereby transfers to the Collateral Agent for
the benefit of the Banks and the Agents the exclusive ownership and
control of the Lock-Box Accounts and all related lock-boxes owned
by WGRC, and WGRC hereby agrees to take any further action
necessary or that the Collateral Agent may reasonably request to
effect such transfer. Each Lock-Box Bank shall be instructed to
remit, on a daily basis, via overnight or same day transfer, all
amounts deposited in its Lock-Box Accounts to a segregated trust
account maintained with and under the exclusive control of the
Collateral Agent (on the corporate trust side thereof) for the
benefit of the Banks (the "Collection Account") in accordance with
the terms of a Lock-Box Agreement substantially in the form of
Exhibit 9.03 hereto. WGRC shall have no legal ownership of or
control over the Collection Account and no rights of withdrawals
therefrom except for the right to receive Available Cash to the
extent provided under this Agreement and the other rights to
receive withdrawals expressly provided for in Section 9.07 or
Section 9.08. WGRC shall, by delivery of the Daily Report, cause
the Servicer to advise WGRC and the Agents of the amount of
Collections to be received into the Lock-Box Accounts and the
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Collection Account on each Business Day with respect to the
Receivables and the Facility Agent shall, based solely on such
Daily Report, advise WGRC and the Agents as to the amounts of such
Collections which constitute Available Cash. If WGRC or its agents
or representatives shall at any time receive any cash, checks or
other instruments constituting Collections, such recipient shall
promptly segregate such payment and hold such payment in trust for
and in a manner acceptable to the Agents, and shall, promptly upon
receipt of any such payment (and in any event within one Business
Day following such receipt), remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments of
transfer, to a Lock-Box Account or the Collection Account.
(b) At any time upon the occurrence and during the
continuance of a Liquidation Event: (i) with contemporaneous
notice to WGRC, the Facility Agent may notify any or all of the
Obligors of the security interest granted hereunder and may direct
any or all of the Obligors of Receivables included in the
Collateral to pay all amounts payable under any such Receivables
directly to the Collateral Agent or its designee; (ii) at the
Facility Agent's request and at WGRC's expense, WGRC shall give
notice of the Banks' interest in the Collateral to each Obligor
whose Receivables are included in the Purchased Assets and direct
that payments be made directly to the Collateral Agent or its
designee; (iii) WGRC shall promptly assemble all Records included
in the Collateral, and make the same available to the Collateral
Agent at a place selected by the Collateral Agent or its designee;
and (iv) the Collateral Agent may enforce the Receivables Sale
Agreement against the Sellers and the Servicer and shall have the
right to give or withhold any or all consents, requests, notices,
directions, approvals, demands, extensions or waivers under or with
respect thereto, to the same extent as WGRC would otherwise be
entitled to do. In addition to the foregoing, upon the occurrence
and during the continuance of a Servicer Termination Event, WGRC
shall, at the request of the Facility Agent, exercise its rights
under the Receivables Sale Agreement to notify any or all of the
Obligors of WGRC's interests in the Purchased Assets. WGRC hereby
authorizes the Banks, and gives to the Banks its irrevocable power
of attorney, which shall be coupled with an interest, and the Banks
hereby designate the Collateral Agent to exercise such
authorization and power of attorney, to take any and all steps in
the name of WGRC, which steps are necessary or desirable, in the
reasonable determination of the Collateral Agent, to collect all
amounts due under the Collateral, including, without limitation,
endorsing WGRC's name on checks and other instruments representing
Collections and, upon the occurrence and during the continuance of
a Liquidation Event, enforcing such Receivables and the related
Invoices.
(c) WGRC shall, or shall cause the Servicer to, following
notification that collections of any receivable or other intangible
owed to any Seller or an Affiliate thereof, which is not a
Purchased Asset, have been deposited into the Lock-Box Accounts,
segregate all such collections or, if such collections have been
deposited into the Collection Account, request the Collateral Agent
to segregate such collections. Promptly after such misapplied
collections have been reasonably identified to the Collateral
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Agent, the Collateral Agent shall turn over to the applicable
Seller or such Affiliate, as applicable, all such collections less
all reasonable and appropriate out-of-pocket costs and expenses, if
any, incurred by the Collateral Agent in identifying and collecting
such receivables.
(d) WGRC shall cause to be delivered to the Agents, on
each Business Day, the Daily Report for such day prepared by the
Servicer pursuant to Section 5.03(b) of the Receivables Sale
Agreement, and shall cause to be delivered to the Agents and the
Banks, no later than each Reporting Date with respect to the
Collection Period most recently ended, the Settlement Statement
prepared by the Servicer pursuant to such Section 5.03(b).
(e) In the event that the Servicer resigns or is removed under
the terms of the Receivables Sale Agreement and this Agreement, and
a successor Servicer is not promptly named by WGRC (or, following a
Servicer Termination Event, the Collateral Agent), WGRC hereby
agrees to appoint the Collateral Agent, and the Collateral Agent
hereby agrees to accept such appointment (or, following a Servicer
Termination Event, agrees to appoint itself) as Servicer, and to
assume all of the duties and obligations thereof.
SECTION 9.04. Responsibilities of WGRC. Anything herein
to the contrary notwithstanding:
(a) WGRC shall (i) diligently perform (either directly or
indirectly by causing the Sellers to perform) all of its obliga-
tions under the Invoices related to the Receivables and the
exercise by the Facility Agent or the Collateral Agent of their
respective rights hereunder shall not relieve WGRC from such
obligations and (ii) pay when due (either directly or, to the
extent provided for in the Receivables Sale Agreement, indirectly
by causing the Sellers to pay when due) any taxes relating to the
origination and sale of the Receivables and the other Purchased
Assets and/or the grant of any security interest hereunder.
(b) Neither any Agent nor any Bank shall have any
obligation or liability with respect to any Receivable or related
contract nor be obligated to perform any of the obligations of WGRC
or any Seller thereunder and WGRC agrees to indemnify and hold
harmless each of the Agents and the Banks against and from any and
all liabilities arising from or related to any such obligation or
liability (the payment of such indemnity to be subject to the terms
of Sections 9.07(c) and 9.08 hereof).
SECTION 9.05. Further Action Evidencing Security
Interest. (a) WGRC agrees that at any time and from time to time,
at its expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that may be
necessary to perfect, protect or more fully evidence the security
interests granted hereunder, or to enable the Facility Agent, the
Collateral Agent or the Banks to exercise or enforce any of their
respective rights hereunder. Without limiting the generality of
the foregoing, WGRC will (i) cause its computer files and other
physical records relating to the Receivables (by means of a general
legend that will automatically appear at or near the beginning of
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any list or print-out of the Receivables) to indicate that, unless
otherwise specifically identified on such list or print-out as a
Receivable not so sold, all Receivables included in such list or
print-out and Related Security are part of the Collateral in
accordance with this Agreement and (ii) execute and file such
financing or continuation statements or amendments thereto or
assignments thereof, and such other instruments and notices, as may
be necessary or appropriate or as the Facility Agent or any of its
agents, representatives or permitted assignees may reasonably
request.
(b) In the event that WGRC, within one (1) Business Day
after notice from the Facility Agent, fails to deliver one or more
financing or continuation statements, and amendments thereto and
assignments thereof, that the Facility Agent or any of its agents,
representatives or permitted assignees may reasonably determine to
be necessary to evidence or perfect the Collateral Agent's security
interest in the Collateral or WGRC's ownership of all or any of the
Purchased Assets now existing or hereafter arising, then WGRC
hereby authorizes either of the Agents to file any such statements
without the signature of WGRC where permitted by law. A carbon,
photographic or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof,
shall be sufficient as a financing statement. If WGRC fails to
perform any of its agreements or obligations under this Agreement,
following expiration of any applicable cure period, either Agent
may (but shall not be required to) perform, or cause performance
of, such agreement or obligation, and the reasonable expenses of
the Agents and the Banks incurred in connection therewith shall be
payable by WGRC upon the Facility Agent's written demand therefor
(which demand shall itemize such expenses in reasonable detail).
(c) All amounts payable by WGRC under this Section 9.05
shall be payable subject to the terms of Sections 9.07(c) and 9.08
hereof.
SECTION 9.06. Application of Collections. Any payment
by an Obligor in respect of any indebtedness or other obligations
owed by such Obligor to WGRC shall, except as otherwise specified
by such Obligor or otherwise required by law, be applied as a
Collection of any Receivable included in the Purchased Assets (in
the order of the age by invoice date of such Receivables, starting
with the oldest such Receivable, as determined under the Credit and
Collection Policy) to the extent of any amounts then due and
payable thereunder before being applied to (i) any Receivable
arising subsequent to the Termination Date which is not included in
the Purchased Assets or (ii) any other indebtedness of such Obligor
to any Seller or to WGRC.
SECTION 9.07. Administration of Collection Account Prior
to the Liquidation Period. On each Business Day prior to the
commencement of the Liquidation Period, the Collateral Agent shall
administer all Collections received into the Collection Account in
accordance with the following provisions of this Section 9.07:
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(a) On each such Business Day, the Collateral Agent shall
retain in the Collection Account an amount equal to the Carrying
Costs Reserve. Whenever any Reserved Carrying Costs have become
due and payable (or, in the case of Ordinary Course Expenses which
constitute Reserved Carrying Costs), when WGRC has made a request
certifying that such Ordinary Course Expenses need to be paid on or
within the next five (5) Business Days), the Collateral Agent shall
withdraw funds from the Collection Account to pay such Reserved
Carrying Costs (or, in the case of Ordinary Course Expenses which
constitute Reserved Carrying Costs, to deposit the amount of such
requested funds in WGRC's checking account maintained for such
purposes).
(b) If, on any such Business Day, the Aggregate Net
Outstandings exceed the Base Amount, then, in such event, all
Available Cash shall be remitted to the Banks for prepayment of the
Revolving Loans and/or retention in the Collection Account in the
following order of priority: first, to prepay the Revolving Loans
to the extent required under Section 2.07(a), second, to retain in
the Collection Account the amount of any Available Cash which must
be retained in the Collection Account pursuant to Section 2.07(b)
and third, to cash collateralize the Letters of Credit in
accordance with Section 2.07(a).
(c) After giving effect to the retention and or
remittance of funds under clauses (a) and (b) of this Section 9.07,
all Available Cash (including any cash income received by reason of
investments of any retained cash) shall, except as otherwise
required in clause (d) below of this Section 9.07, be remitted to
WGRC or, if any payment described below in this clause (c) is owing
to either Agent, the Issuing Bank or any Bank, to such Person
directly. All such Available Cash shall be applied to pay (i)
first, any amounts owing to the Issuing Bank under Sections 3.06(a)
or (b) in connection with any Bank's failure to fund its Pro Rata
Share of a draw under a Participated Letter of Credit and then any
amounts owing to the Facility Agent under Section 2.04(a) or
2.04(b) in connection with any Bank's failure to fund its Pro Rata
Share of a Revolving Loan , (ii) second, any amounts owing to
Dissenting Banks or required to cash collateralize the applicable
Pro Rata Share of Syndicated Letters of Credit issued by Dissenting
Banks pursuant to Section 2.06(d) hereof, (iii) third, any
Unreserved Carrying Costs owing to the Banks or the Agents, (iv)
fourth, any other Unreserved Carrying Costs, (v) fifth, to the
extent requested by WGRC, any voluntary prepayments of the
Revolving Loans pursuant to Section 2.07(c) above, (vi) sixth, the
purchase price for newly generated Purchased Assets under the
Receivables Sale Agreement, and (vii) seventh, the following
amounts in the following order of priority: (1) to Wyman to pay
principal and interest then due and owing on the L/C Notes, (2) to
the Sellers pro rata to pay any principal and interest outstanding
on the Short-Term Notes, (3) to the Sellers pro rata to pay any
interest and principal outstanding on the Long-Term Notes, and (4)
only if WGRC has so elected and subject to proper authorization of
WGRC's board of directors, to pay dividends on or redeem in whole
or in part the common stock of WGRC.
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(d) If, on any such Business Day, either (i) an
Insolvency Event with respect to any Seller or (ii) to Wyman's
knowledge, a Liquidation Event described in clause (m) of the
definition thereof with respect to such Seller's Receivables, has
occurred and is continuing, then, unless WGRC has been authorized
to continue purchases of Receivables from such Seller under the
Receivables Sale Agreement in accordance with Section 8.07 hereof
during either such event, the Collateral Agent shall, after giving
effect to the retention and/or remittance of funds under clauses
(a) and (b) of this Section 9.07, separately identify the Bank
Percentage and the WGRC Percentage of the Collections attributable
to such Seller's Receivables. The Bank Percentage of such
Collections shall be set aside in trust for the Banks until the
earliest of (i) commencement of the Liquidation Period (at which
time such funds shall be remitted and applied as provided in
Section 9.08), (ii) dismissal of the proceedings giving rise to
such Insolvency Event or resumption of purchases pursuant to
appropriate court order as contemplated under the Receivables Sale
Agreement (in which event such funds shall be remitted and applied
as provided above in this Section 9.07) and (iii) waiver or cure of
the Liquidation Event described in clause (m) thereof (in which
event such funds shall be remitted and applied as provided above in
this Section 9.07); the Bank Percentage of such Collections shall
also be used to make any mandatory prepayments of the Revolving
Loans which may subsequently be required under clause (b) of this
Section 9.07. The WGRC Percentage of such Collections shall be
remitted and applied as follows:
(x) fifty percent (50%) of the WGRC Percentage of such
Collections shall be retained in the Collection Account as
cash collateral for the payment of any not-yet accrued
Carrying Costs (including, without limitation, indemnification
amounts) or for the payment of any indemnities described in
Section 9.08(c) until the amount of such cash collateral so
retained equals (x) fifteen percent (15%) times (y) the
Dilution Reserve Ratio then in effect times (z) the Net
Eligible Receivables as of the date such Insolvency Event or
Liquidation Event first occurred; and
(y) the remaining fifty percent (50%) of the WGRC
Percentage of such Collections shall be remitted to WGRC on
account of the WGRC Percentage and may be used by WGRC to make
any payments which it is authorized to make under clause (c)
of this Section 9.07.
SECTION 9.08. Administration of Collection Account
During the Liquidation Period. (a) On each Business Day during the
Liquidation Period, the Collateral Agent shall remit all
Collections on deposit in the Collection Account to the appropriate
parties in the following order of priority:
(i) to pay the following accrued and unpaid Reserved
Carrying Costs in the following order of priority: first, to
the payment of all accrued and unpaid interest on the
Revolving Loans (other than interest owed pursuant to Sections
4.01(d) and 4.03(b)); second, to the payment of any Servicer
Fees owed to any Servicer, if other than WGRC or any Affiliate
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thereof; third, to the payment of all Agent Fees then due and
payable to the Facility Agent; fourth, to the payment of all
L/C Fees then due and payable; fifth, to the payment of all
L/C Fronting Fees and other fees then due and payable to the
Issuing Bank under Sections 4.02(d) and (e); sixth, to the
payment of all Non-Usage Fees owed with respect to periods
prior to the Termination Date; and seventh, to be remitted to
WGRC for the payment of Ordinary Course Expenses which
constitute Reserved Carrying Costs;
(ii) to prepay the Revolving Loans until the Aggregate
Loan Amount equals zero; provided, that any such reductions
shall, subject to Section 2.04(b) and 3.06(b), be applied
first, against all Base Rate Loans then outstanding, second,
to all Eurodollar Loans then outstanding with Interest Periods
ending on such date, and third, to any other Eurodollar Loans
then outstanding;
(iii) to cash collateralize the outstanding Letters of
Credit until the amount of cash collateral held by the
Collateral Agent equals the Aggregate L/C Amount;
(iv) to pay any Unreserved Carrying Costs owing to the
Banks and the Agents;
(v) to pay any other Unreserved Carrying Costs;
(vi) to pay any Servicer Fees owed to WGRC or any
Affiliate thereof; and
(viii) to pay interest and principal amounts owed under
the Intercompany Notes.
All Unreserved Carrying Costs shall only be paid from Collections
and other cash of WGRC, and there shall be no recourse to or claim
against WGRC at any time for the payment thereof to the extent that
such Collections and cash are insufficient to satisfy such
Unreserved Carrying Costs. After the Revolving Loans have been
paid in full and the Aggregate L/C Amount has been cash
collateralized in full, any remaining Collections and proceeds of
the Collateral (including any income from the investment of the
cash collateral in the Collection Account), less any continued
Carrying Costs, shall be remitted to WGRC. In the event that any
Letter of Credit expires undrawn or is otherwise terminated, then
any cash collateral previously held on account of such Letter of
Credit shall be remitted to WGRC.
(b) During the Liquidation Period, the Collateral Agent
may, at its discretion, require that all Collections and other
proceeds which would otherwise be received into the Collection
Account be held in a special segregated trust account maintained on
the corporate trust side thereof pending the determination of
whether or not such Collections and other proceeds are included in
the Purchased Assets. In such event, the Servicer shall, as soon
as possible after receipt of any Collections and other proceeds by
the Collateral Agent, (i) determine whether such Collections and
proceeds are included in the Purchased Assets or otherwise (such
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determination to be satisfactory to the Collateral Agent) and (ii)
notify WGRC, the Sellers and the Agents of such determination. The
Collateral Agent shall as soon as possible thereafter transfer any
Collections or proceeds included in the Purchased Assets to the
Collection Account for application pursuant to the other terms of
this Section 9.08 and pay any Collections that are not included in
the Purchased Assets to the applicable Person. Notwithstanding the
foregoing, during any Liquidation Period, all Collections received
from an Obligor in respect of any Receivables or other indebtedness
owed to any Seller and/or WGRC shall continue to be applied in
accordance with the provisions of Section 9.06 hereof and Section
5.06 of the Receivables Sale Agreement.
SECTION 9.09. Remittances and Investment of Funds. All
remittances from the Collection Account to the Banks, to WGRC or to
the Agents as required under Section 9.07 or under Section 9.08
shall be by wire transfer of immediately available funds. All
funds which are retained in the Collection Account pursuant to
Section 9.07 or Section 9.08 (including funds maintained as part of
the Carrying Costs Reserve) shall be invested in Permitted
Investments selected by the Collateral Agent at the direction of
WGRC (such direction to be set forth in the applicable Daily
Report), or, absent such direction or at any time during the
Liquidation Period or following notice to WGRC from the Collateral
Agent following the occurrence and during the continuance of a
Liquidation Event, in overnight Permitted Investments selected by
the Collateral Agent, provided, however, that (i) each such
investment shall be in the name of the Collateral Agent or
otherwise in a form which permits the Collateral Agent to maintain
a perfected security interest in such investment and (ii) the
maturities of Permitted Investments maintained as part of the
Carrying Costs Reserve shall be limited to ensure that all such
Permitted Investments mature in time for WGRC to make timely
payments of all Carrying Costs as the same become due. The
Collateral Agent may liquidate any Permitted Investments prior to
maturity in order to transfer funds or make any distributions which
transfers or distributions are required under the Facility
Documents, provided that no such Permitted Investments may be
liquidated at a price less than the purchase price therefor without
the prior consent of all of the Banks. It is understood that the
Collateral Agent shall have no liability to WGRC, to any other
party hereto or to any other Person for (i) the rate of return on
any such Permitted Investments or (ii) any failure to pay, remit,
distribute or transfer funds to such party or to make any required
payment, remittance, distribution or transfer on account of the
Collateral Agent's inability to liquidate any Permitted Investments
as a result of the foregoing sentence.
ARTICLE X
TERMINATION; REMEDIES; INDEMNIFICATION
SECTION 10.01. Termination; Remedies. The obligation of
the Banks to make Revolving Loans and to issue and/or participate
in Letters of Credit shall terminate on the Commitment Termination
Date unless the Termination Date shall have earlier occurred
pursuant to the definition thereof. Upon any such termination, (i)
the Commitments of the Banks shall be terminated; (ii) the
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Liquidation Period shall immediately commence; (iii) the Agents and
the Banks shall be entitled to pursue any other right or remedy
under this Agreement; and (iv) the Agents and the Banks shall be
entitled to exercise all the rights and remedies provided to a
secured creditor upon default under the UCC of otherwise, all of
which rights and remedies shall be cumulative to those provided in
this Agreement and the other Facility Documents (provided, that the
Agents and the Banks may not sell all or substantially all of the
Receivables unless such sale is commercially reasonable and all of
the Banks consent thereto). In addition to the foregoing, if WGRC
becomes the subject of an Insolvency Event, then, in addition to
the foregoing, the principal and interest on the Revolving Notes
and the other Obligations shall become immediately due and payable,
without presentment, demand, protest or other notice of any kind
whatsoever. Absent the occurrence of an Insolvency Event with
respect to WGRC, the principal and interest on the Revolving Notes
shall become immediately due and payable upon the Final Collection
Date.
SECTION 10.02. Binding Effect. Notwithstanding any
Termination Date, the obligations of WGRC under this Agreement
shall be absolute and unconditional and shall remain in full force
and effect until the Obligations have been fully paid and
satisfied. Upon the Collection Date, the security interests
granted hereby shall terminate and the Collateral Agent will, at
WGRC's expense, execute and deliver to WGRC such UCC termination
statements and other documents as WGRC may reasonably request to
evidence such termination.
SECTION 10.03. Indemnities by WGRC. Without limiting
any other rights which the Facility Agent, the Collateral Agent,
the Banks, the Issuers and the Issuing Bank may have hereunder or
under applicable law, but without duplication, WGRC hereby agrees
to indemnify each of the Facility Agent, the Collateral Agent, the
Banks, the Issuers and the Issuing Bank, their successors and
permitted assignees, and their and such assignees' respective
officers, directors, agents and employees (all of the foregoing
collectively referred to herein as "Indemnitees") from and against
any and all damages, losses, claims, liabilities, costs and
expenses, including reasonable attorneys' fees, and disbursements
(all of the foregoing collectively referred to herein as the
"Indemnified Amounts") awarded against or incurred by any
Indemnitee relating to or resulting from this Agreement or the
acquisitions or ownership by WGRC of any Purchased Assets
(excluding, however, any such amounts to the extent the same
comprise recourse for Receivables which are not collected, not paid
or uncollectible on account of the insolvency, bankruptcy,
inability or failure to pay or lack of creditworthiness of the
applicable Obligor). Without limiting the foregoing (but subject
to the exclusion in the immediately preceding sentence), WGRC shall
indemnify the Indemnitees for Indemnified Amounts relating to or
resulting from:
(i) any representation or warranty made by WGRC or any
Seller (or any of its officers) (individually or as Servicer
or as subservicer) under or in connection with this Agreement
or in connection with the preparation or delivery of any Daily
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Report, any Settlement Statement, or any other information or
report delivered pursuant hereto, which shall have been false,
incomplete or incorrect in any respect when made;
(ii) the failure by WGRC or any Seller (individually or
as Servicer or as subservicer) to comply with any term,
provision or covenant contained in this Agreement, any other
Facility Document or any agreement executed in connection with
this Agreement or any other Facility Document (in each case,
where WGRC or such Seller is a party thereto), or with any
applicable law, rule or regulation with respect to any
Receivable, the related Invoice or the Related Security, or
the nonconformity of any Receivable, the related Invoice or
the Related Security with any such applicable law, rule or
regulation;
(iii) the failure of any Seller to vest and maintain
vested in WGRC or to transfer to WGRC, or the failure of WGRC
to maintain vested in it, legal and equitable title to and
ownership of the Receivables and other Purchased Assets which
are, or are purported to be, sold by such Seller under the
Receivables Sales Agreement, free and clear of any Lien (other
than Liens created in favor of WGRC thereunder and Liens
created in favor of the Collateral Agent hereunder and under
the other Facility Documents), including all amounts expended
by the Collateral Agent pursuant to Section 9.05(b);
(iv) the failure by WGRC or any Seller to file, or any
delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any
Receivables and other Purchased Assets which are, or are
purported to be, sold by a Seller under the Receivables Sales
Agreement, or which are the subject of a security interest
granted under this Agreement, whether at the time of any
Purchase or at any subsequent time;
(v) the failure by WGRC or any Seller to be duly
qualified to do business, to be in good standing or to have
filed appropriate fictitious or assumed name registration
documents in any jurisdiction;
(vi) any dispute, claim, offset or defense to the
payment of any Receivable (other than discharge in bankruptcy
or under similar insolvency law) which is, or is purported to
be, sold by any Seller under the Receivables Sales Agreement
which dispute, claim, offset or defense is based on the
Receivable or related invoice not being a legal, valid and
binding obligation of the related Obligor, enforceable in
accordance with its terms, or which relates to Dilution
Factors or to such Receivables being Noncomplying Receivables
on the date of Purchase or on any similar ground not related
to the creditworthiness of the applicable Obligor or any other
claim asserted against any Indemnitee resulting from the sale
of the merchandise or services related to such Receivable or
the furnishing or failure to furnish such merchandise or
services;
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(vii) any products liability claim or personal injury or
property damage suit or other similar or related claim or
action of whatever sort arising out of or in connection with
the goods and/or merchandise or services that are the subject
of any Receivable generated by a Seller or related Invoice or
contract;
(viii) the failure of WGRC or any Seller to pay when due
(A) any taxes or charges imposed on such Seller or (B) any
sales taxes or other charges imposed in connection with such
Seller's transfer of Purchased Assets under the Receivables
Sales Agreement (other than taxes on or measured by the net
income of WGRC or any of its permitted assignees);
(ix) the failure of WGRC or any Seller (individually or
as Servicer or subservicer) or any of its agents or
representatives to perform its duties and obligations in
accordance with the provisions of this Agreement, or to remit
to WGRC, Collections of Purchased Assets received by such
Seller or any such agent or representative; and
(x) the commingling of Collections of Purchased Assets
with any other funds of WGRC or any of the Sellers.
It is expressly agreed and understood by the parties (i) that such
indemnification is not intended to constitute a guarantee of the
collectibility or payment of the Receivables sold hereunder and the
other Purchased Assets and (ii) that nothing in this Section 10.03
shall require WGRC to indemnify any Indemnitee (A) for damages,
losses, claims or liabilities or related costs or expenses
resulting from such Indemnitee's gross negligence or willful
misconduct or (B) for lost profits, consequential, special or
punitive damages. Notwithstanding anything in this Agreement to
the contrary, the gross negligence or willful misconduct of any one
Indemnitee shall not be a defense to, or in any other way adversely
affect, mitigate or diminish any other Indemnitee's right or claim
to indemnification under this Section 10.03. Any amounts subject
to the indemnification provisions of this Section 10.03 shall,
subject to Sections 9.07(c) and 9.08 hereof, be paid by WGRC from
the Collection Account for distribution to the applicable
Indemnitees within five (5) Business Days following such
Indemnitees' written demand therefor, setting forth in reasonable
detail the basis for such demand, in each case out of Available
Cash (including any proceeds received by WGRC pursuant to the
indemnifications made in its favor under the Receivables Sales
Agreement). Notwithstanding anything to the contrary in this
Agreement, for purposes of this Section 10.03, any representations,
warranties and covenants contained in Sections 6.01(a), 6.01(r),
7.04 or 7.09 of this Agreement shall not be deemed to be limited to
failures to perform or comply or to events, circumstances,
conditions or changes that did give rise to a Material Adverse
Effect. The indemnity obligations set forth in this Section 10.03
shall be continuing and shall survive any termination of this
Agreement.
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ARTICLE XI
THE AGENTS
SECTION 11.01. Authorization and Action. Each Bank
hereby accepts the appointment of and irrevocably authorizes each
of the Agents to take such action as agent on its behalf and to
exercise such powers as are expressly delegated to such Agent by
the terms hereof, together with such powers as are reasonably
incidental thereto. Neither Agent shall be required to take any
action which exposes such Agent to personal liability or which is
contrary to this Agreement or applicable law. Except where this
Agreement expressly provides otherwise, each Agent agrees to give
to the other Agent and to each Bank prompt notice of each notice
given to it by WGRC or any Seller pursuant to the terms of this
Agreement. The appointment and authority of the Agents hereunder
shall terminate upon the indefeasible payment in full of the
Obligations and the termination of all Letters of Credit.
SECTION 11.02. Nature of Agents' Duties. The Agents
shall have no duties or responsibilities except those expressly set
forth in this Agreement or in the other Facility Documents. The
duties of the Agents shall be mechanical and administrative in
nature. Neither Agent shall have by reason of this Agreement a
fiduciary relationship in respect of the other Agent or any Bank.
Nothing in this Agreement or any of the Facility Documents, express
or implied, is intended to or shall be construed to impose upon
either Agent any obligations in respect of this Agreement or any of
the Facility Documents except as expressly set forth herein or
therein. Neither Agent shall have any duty or responsibility,
either initially or on a continuing basis, to provide any Bank or
the other Agent with any credit or other information with respect
to WGRC or the Sellers, whether coming into its possession before
the date hereof or at any time or times thereafter (except as
expressly set forth in this Agreement). If either Agent seeks the
consent or approval of the Banks to the taking or refraining from
taking any action hereunder, such Agent shall send notice thereof
to each Bank. The Agents shall promptly notify each Bank any time
that the Banks have instructed the Agents to act or refrain from
acting pursuant hereto.
SECTION 11.03. UCC Filings. Each of WGRC and the Banks
expressly recognizes and agrees that the Collateral Agent may be
listed as the assignee or secured party of record on the various
UCC filings required to be made hereunder in order to perfect the
grant of a security interest herein for the benefit of the Banks,
that such listing shall be for administrative convenience only in
creating a single secured party to take certain actions hereunder
on behalf of the Banks and that such listing will not affect in any
way the status of the Banks as the beneficial holders of such
security interest. In addition, such listing shall impose no
duties on the Collateral Agent other than those expressly and
specifically undertaken in accordance with this Article XI.
SECTION 11.04. Agent's Reliance, Etc. Neither of the
Agents nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it
or them as Agent under or in connection with this Agreement
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(including, without limitation, such Agent's servicing,
administering or collecting Receivables) except for its or their
own gross negligence or willful misconduct. Without limiting the
foregoing, each Agent: (i) may consult with legal counsel
(including counsel for WGRC), independent public accountants and
other experts selected by it and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no
warranty or representation to the other Agent or to any Bank and
shall not be responsible to the other Agent or any Bank for any
statements, warranties or representations made in or in connection
with this Agreement; (iii) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of WGRC or to
inspect the property (including the books and records) of WGRC
(except as otherwise expressly set forth in this Agreement); (iv)
shall not be responsible to the other Agent or to any Bank for the
due execution, legality, validity, enforceability, genuineness,
sufficiency, or value of this Agreement, or any other instrument or
document furnished pursuant hereto, or any certificate, report,
statement or other document referred to or provided for in, or
received by the Agents under or in connection with, the Facility
Documents, or for any failure of WGRC or any of its Affiliates to
perform its obligations under the Facility Documents; and (v) shall
incur no liability under or in respect of this Agreement by acting
upon any notice (including notice by telephone), consent,
certificate or other instrument or writing (which may be by telex)
believed by it to be genuine and to be or to have been signed or
sent by the proper party or parties. Each Agent may at any time
request instructions from the Banks with respect to any actions or
approvals which by the terms of this Agreement or of any of the
other Facility Documents such Agent is permitted or required to
take or to grant, and such 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 Facility Documents until it shall have received such
instructions from the Majority Banks (or, where required, from the
Required Banks or all of the Banks). Without limiting the
foregoing, no Bank shall have any right of action whatsoever
against either Agent as a result of such Agent acting or refraining
from acting under this Agreement or any of the other Facility
Documents in accordance with the instructions of the Majority Banks
(or, where required, the Required Banks or all of the Banks). The
Agents shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or
conversation reasonably believed by it or them to be genuine and
correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to WGRC), independent
accountants and other experts selected by the Agents.
SECTION 11.05. Agent and Affiliates. To the extent that
the Agents or any of their Affiliates are or shall become Banks
hereunder, such Agent or such Affiliate, in such capacity, shall
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have each and every right and power under this Agreement as would
any other Bank hereunder (including, without limitation, the right
to vote upon any matter upon which any of the Banks are entitled to
vote) and, without exception, may exercise the same as though it
were not an Agent. Each Agent and its Affiliates may engage in any
kind of business with WGRC or any Seller, any of their respective
Affiliates and any Person who may do business with or own
securities of WGRC or any Seller or any of their respective
Affiliates, all as if it were not an Agent hereunder and without
any duty to account therefor to the other Agent or the Banks.
SECTION 11.06. Credit Decision. Each Bank and the
Issuing Bank acknowledges that it has, independently and without
reliance upon either Agent or any other Bank and based on such
documents and information as it has deemed appropriate, made its
own evaluation and decision to enter into this Agreement and, to
the extent it so determines, to issue and participate in Letters of
Credit and/or to make Revolving Loans hereunder. Each Bank and the
Issuing Bank also acknowledges that it will, independently and
without reliance upon either Agent or any other Bank, and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own decisions in taking or not taking
action under this Agreement.
SECTION 11.07. Indemnification. Each Bank agrees to
indemnify the Agents (to the extent not reimbursed by WGRC or, to
the extent applicable, by any Seller), ratably according to its Pro
Rata Share, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against the Agents in
any way relating to or arising out of this Agreement or any action
taken or omitted by the Agents under this Agreement; provided,
however, that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements resulting from
such Agent's gross negligence or willful misconduct. Without
limiting the generality of the foregoing, each Bank agrees to
reimburse the Agents, (to the extent not reimbursed by WGRC or, to
the extent applicable, by any Seller) ratably according to their
Pro Rata Shares, promptly upon demand, for any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Agents
in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of their rights or
responsibilities under, this Agreement. The rights of the Agents
under this Section 11.07 shall survive the termination of this
Agreement.
SECTION 11.08. Successor Agent. Either Agent may resign
at any time by giving thirty days' notice thereof to the other
Agent, the Banks, WGRC and the Servicer. All of the Banks other
than the applicable Agent shall have the right to remove such
Agent, with or without cause. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a
successor Agent approved by WGRC (which approval will not be
unreasonably withheld or delayed), and such resignation or removal
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shall not be effective until such successor Agent is appointed and
has accepted such appointment; provided, that WGRC shall not have
the right to approve any successor Agent following the occurrence
and during the continuance of a Liquidation Event or during the
Liquidation Period. The Banks shall provide the Rating Agency with
prompt notice of the resignation or removal of either Agent. If no
successor Agent shall have been so appointed and accepted such
appointment within 45 days after the retiring Agent's giving of
notice of resignation, then the retiring or removed Agent may, on
behalf of the Banks appoint a successor Agent approved by WGRC
(which approval will not be unreasonably withheld or delayed),
which successor Agent shall be (a) either (i) a commercial bank
having a combined capital and surplus of at least $500,000,000 or
(ii) an Affiliate of such an institution and (b) experienced in the
types of transactions contemplated by this Agreement. In addition,
any successor Collateral Agent must be authorized under United
States law to maintain and operate the Collection Account. Upon
the acceptance of any appointment as an Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to
and become vested with all of the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be
discharged from all further duties and obligations under this
Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article XI shall inure
to its benefit as to any actions taken or omitted to be taken by it
while it was an Agent under this Agreement.
SECTION 11.09. Direction by the Banks. The Agents shall
be fully justified in failing or refusing to take any action under
the Facility Documents unless it or they shall first receive such
advice or concurrence of the Majority Banks (or, if applicable, the
Required Banks or all of the Banks) as it or they deem appropriate
or it or they shall first be indemnified to its or their
satisfaction by the Banks against any and all liability and expense
which may be incurred by it or them by reason of taking or
continuing to take any such action. The Agents shall in all cases
be fully protected in acting, or in refraining from acting, under
the Facility Documents in accordance with a request of the Majority
Banks (or, if applicable, the Required Banks or all of the Banks)
and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Banks and all future holders
of the Revolving Notes.
SECTION 11.10. Notice of Liquidation Events. The Agents
shall not be deemed to have knowledge or notice of the occurrence
of any Liquidation Event hereunder unless either Agent shall have
received notice from a Bank or WGRC describing such Liquidation
Event or stating that such notice is a "notice of Liquidation
Event." In the event that an Agent receives such a notice, such
Agent shall given prompt notice thereof to the Banks. The Agents
shall take such action or refrain from taking such action with
respect to such Liquidation Event as shall be reasonably directed
by the Majority Banks (or, if applicable, the Required Banks or all
of the Banks); provided, the Agents may (but shall not be obligated
to) take such action, or refrain from taking such action, as is
permitted hereunder, with respect to such Liquidation Event as it
or they shall deem advisable in the best interests of the Banks.
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SECTION 11.11. Duty of Care. The Agents shall endeavor
to exercise the same care in its administration of the Facility
Documents as they exercise with respect to similar transactions in
which they are involved and where no other co-lenders or
participants are involved; provided that the liability of the
Agents for failing to do so shall be limited as provided in the
preceding paragraphs of this Article XI.
SECTION 11.12. Delegation of Agency. (i) If at any
time or times it shall be necessary or prudent in connection with
the exercise or protection of the Agents' rights hereunder in order
to conform to any law of any jurisdiction in which any of the
Collateral shall be located, or the Agents shall be advised by
counsel that it is so necessary or prudent in the interest of the
Banks, or the Agents shall deem it necessary for its or their own
protection in the performance of its or their duties hereunder, the
Agents and (to the extent required by the Agents) WGRC shall
execute and deliver all instruments and agreements reasonably
necessary or proper to constitute another bank or trust company, or
one or more individuals approved by the Collateral Agent (to the
extent necessary or required by the Collateral Agent) (each an
"Approved Delegate"), either to act as co-agent or co-agents or
trustee of all or any of the Collateral, jointly with the
Collateral Agent originally named herein or any successor, or to
act as separate agent or agents or trustee of any such Collateral.
In the event that WGRC shall not have joined in the execution of
such instruments or agreements with any Approved Delegate within
thirty (30) Business Days after the receipt of a written request
from the Collateral Agent to do so, or in case a Liquidation Event
shall have occurred and be continuing, WGRC hereby irrevocably
appoints the Agent as its agent and attorney to act for it under
the foregoing provisions of this Section 11.10 in such contingency.
Every separate agent and every co-agent and every trustee, other
than any agent which may be appointed as successor to the Facility
Agent, shall, to the extent permitted by applicable law, be
appointed to act and be such, subject to the following provisions
and conditions, namely:
(a) except as otherwise provided herein, all rights,
remedies, powers, duties and obligations conferred upon,
reserved or imposed upon the Facility Agent in respect of the
custody, control and management of moneys, paper or securities
shall be exercised solely by the Facility Agent hereunder;
(b) all rights, remedies, powers, duties and obligations
conferred upon, reserved to or imposed upon the Facility Agent
hereunder shall be conferred, reserved or imposed and
exercised or performed by the Facility Agent except to the
extent that the instrument appointing such separate agent or
separate agents or co-agent or co-agents or trustee shall
otherwise provide, and except to the extent that under any law
of any jurisdiction in which any particular act or acts are to
be performed, the Facility Agent shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, remedies, powers, duties and obligations shall be
exercised and performed by such separate agents or co-agent or
co-agents to the extent specifically directed in writing by
the Facility Agent;
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(c) no power given hereby to, or which it is provided
hereby may be exercised by, any such separate agent or
separate agents or co-agent or co-agents or trustee shall be
exercised hereunder by such separate agent or separate agents
or co-agent or co-agents or trustee except jointly with, or
with the consent in writing of, the Facility Agent, anything
herein contained to the contrary notwithstanding;
(d) no separate agent or co-agent or trustee constituted
under this Section 11.12 shall be personally liable by reason
of any act or omission of any other agent, separate agent, co-
agent or trustee hereunder; and
(e) the Facility Agent, at any time by an instrument in
writing, executed by it, may accept the resignation of or
remove any such separate agent or co-agent or trustee, and in
that case, by an instrument in writing executed by the
Facility Agent and WGRC (to the extent necessary or requested
by the Facility Agent) jointly may appoint a successor to such
separate agent or co-agent or trustee, as the case may be,
anything therein contained to the contrary notwithstanding.
In the event that WGRC shall not have joined in the execution
of any such instrument with a Person or entity within ten (10)
days after the receipt of a written request from the Facility
Agent to do so, or in the case a Liquidation Event shall have
occurred and be continuing, the Facility Agent, acting alone,
may appoint a successor and may execute any instrument in
connection therewith, and WGRC hereby irrevocably appoints the
Facility Agent its agent and attorney to act for it in such
connection in either of such contingencies.
(ii) The Agents may execute any of their duties under
the Facility Documents by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel, and other specialists
and advisors (including affiliates of Shawmut) selected by it,
concerning all matters pertaining to such duties. The Agents shall
not be responsible for the negligence or misconduct of any such
agents, attorneys-in-fact, counsel and other specialists and
advisors selected by it with reasonable care.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Amendments, Etc. No amendment to or
waiver of any provision of this Agreement or the other Facility
Documents, nor consent to any departure by WGRC therefrom, shall in
any event be effective unless the same shall be in writing and
signed by WGRC, the Facility Agent and the Required Banks (with
concurrent notice thereof to the Rating Agency) provided, however,
that no such agreement shall (i) decrease the outstanding amount
of, or extend the repayment of or any scheduled payment date for
the payment of, any interest in respect of any Revolving Loan or
any fees owed to a Bank without the prior written consent of such
Bank; (ii) forgive or waive or otherwise excuse any repayment of
the Aggregate Loan Amount without the prior written consent of each
Bank affected thereby; (iii) increase the Commitment of any Bank
without its prior written consent (it being understood that
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increases in the L/C Facility Sub-Amount shall not constitute an
increase in the Commitment of any Bank); (iv) except as otherwise
expressly contemplated under Section 2.06(d) or Section 2.09, amend
or modify the Pro Rata Share of any Bank without its prior written
consent; (v) amend or modify the provisions of this Section 12.01
or the definition of "Majority Banks" or "Required Banks" without
the prior written consent of each Bank; (vi) without the prior
written consent of all Banks, waive any Liquidation Event arising
from an Insolvency Event with respect to WGRC or any Seller; (vii)
without the prior written consent of all Banks, waive, amend or
otherwise modify the definition of the Termination Date; (viii)
amend, modify or otherwise affect the rights or duties of the
Facility Agent, the Collateral Agent, the Issuing Bank or any other
Issuer hereunder without the prior written consent of such Person;
(ix) amend, waive or modify any definition or provision expressly
requiring the consent of all Banks, the Required Banks or Banks
with specified Pro Rata Shares without the prior written consent of
all Banks, Required Banks or Banks with specified Pro Rata Shares,
as applicable; and (x) without the prior written consent of all
Banks, amend, waive or modify any definition or provision which
would result in a decrease in the Applicable Reserve Ratio unless
the Rating Agency has confirmed in writing that such amendment,
waiver or modification would not cause its rating of the Facility
to be reduced or withdrawn (in which event such amendment, waiver
or modification shall still require the consent of the Required
Banks as set forth above). Any such waiver, consent or approval
shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on WGRC
in any case shall entitle WGRC to any other or further notice or
demand in the same, similar or other circumstances.
SECTION 12.02. No Waiver; Remedies. No waiver by the
Facility Agent, the Collateral Agent or the Banks of any breach or
default of or by WGRC under this Agreement shall be deemed a waiver
of any other previous breach or default or any thereafter
occurring. No failure on the part of the Facility Agent, the
Collateral Agent or the Banks to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder, or
any abandonment or discontinuation of steps to enforce such right,
power or privilege, preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 12.03. Successors and Assigns; Assignment;
Participations. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include
the successors and permitted assigns of such party; all covenants,
promises and agreements by or on behalf of any parties hereto that
are contained in this Agreement shall bind and inure to the benefit
of their respective successors and permitted assigns. WGRC may not
assign or transfer any of its rights or obligations hereunder or
under any of the other Facility Documents without the written
consent of the Facility Agent and all of the Banks. Each of the
Banks, with the prior written consent of the Facility Agent and of
WGRC (each such consent not to be unreasonably withheld), may
assign any of its interests, rights and obligations hereunder to an
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Eligible Assignee; provided, that (i) the Commitment amount to be
assigned hereunder shall not be less than $10,000,000 (unless the
amount assigned either (x) constitutes all of the Commitment of the
assigning Bank or (y) is being assigned from one Bank to another
Bank already party to this Agreement and equals an amount not less
than $5,000,000), (ii) prior to the effective date of any such
assignment, the assignee and assignor shall have (1) executed and
delivered to the Facility Agent and to WGRC an Assignment and
Acceptance substantially in the form of Exhibit 12.03 hereto and
(2) paid a processing fee of $2500 to the Facility Agent, and (iii)
WGRC's consent shall not be necessary with respect to any
assignment by a Bank to an Affiliate of such Bank which is also an
Eligible Assignee. Upon the effectiveness of any such permitted
assignment, (i) the assignee thereunder shall, to the extent of the
interests assigned to it, be entitled to the interests, rights and
obligations of a Bank under this Agreement and (ii) the assigning
Bank shall, to the extent of the interest assigned, be released
from its obligations under this Agreement.
(b) Notwithstanding anything contained in paragraph (a)
of this Section 12.03, (i) each Bank may at any time pledge or
assign all or any portions of its interests and rights under this
Agreement to a Federal Reserve Bank, and (ii) each Bank may sell
participations in all or any part of any Revolving Loan or
Revolving Loans made or in all or any part of any Letter of Credit
issued by such Bank to another Bank or other financial institution
meeting the criteria of an Eligible Assignee; provided, that: (A)
no such grant of a participation shall, without the consent of
WGRC, require WGRC to file a registration statement with the
Securities and Exchange Commission or otherwise comply with the
blue sky laws of any state; (B) such Bank's obligations under this
Agreement shall remain unchanged and such Bank shall remain solely
responsible to WGRC for performance of such obligations; (C) WGRC
shall continue to deal solely and directly with the Bank in
connection with such Bank's rights and obligations under this
Agreement; (D) such participant shall agree to be bound by the
confidentiality provisions of Section 12.08 hereof and (E) no
holder of any such participation shall be entitled to require such
Bank to take or omit to take any action hereunder except that such
Bank may agree with such participant that, without such
participant's consent, such Bank will not consent to an amendment,
modification or waiver referred to in clauses (i) through (vii) of
Section 12.01. Any such participant shall not have any rights
hereunder or under the Facility Documents except that such
participant shall have rights under Sections 4.04, 4.06 and 4.08
hereunder as if it were a Bank; provided, that no such participant
shall be entitled to receive any payment pursuant to such sections
which is greater in amount than the payment which the transferor
Bank would have otherwise been entitled to receive in respect of
the participation interest so sold.
SECTION 12.04. GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF PERSONAL SERVICE AND VENUE; WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTERESTS OF THE COLLATERAL AGENT, THE
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FACILITY AGENT AND THE BANKS IN THE COLLATERAL OR REMEDIES
HEREUNDER OR THEREUNDER IN RESPECT THEREOF, ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. EACH OF
THE PARTIES HERETO HEREBY AGREES TO THE NONEXCLUSIVE JURISDICTION
OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE CITY OF NEW YORK,
NEW YORK (AND ANY COURTS HEARING APPEALS FROM SUCH STATE OR FEDERAL
COURT) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS
BE MADE BY REGISTERED MAIL DIRECTED TO SUCH PARTY AT ITS ADDRESS
SPECIFIED IN SECTION 12.05 OR PROVIDED THEREIN. EACH OF THE
PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION
TO VENUE OF ANY ACTION INSTITUTED HEREUNDER WITHIN THE STATE OF NEW
YORK AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY ANY COURT IN SUCH STATE. NOTHING IN
THIS SECTION 12.04 SHALL AFFECT THE RIGHT OF ANY PARTY HEREUNDER TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT
THE RIGHT OF THE COLLATERAL AGENT, THE FACILITY AGENT OR THE BANKS
TO BRING ANY ACTION OR PROCEEDING AGAINST WGRC OR ITS PROPERTY IN
THE COURTS OF ANY OTHER JURISDICTION OR JURISDICTIONS TO THE EXTENT
NECESSARY FOR REALIZING ON THEIR INTERESTS IN ANY COLLATERAL
GRANTED HEREUNDER. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT, POWER OR REMEDY UNDER OR IN CONNECTION WITH THIS AGREEMENT
OR UNDER OR IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES
THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY. THE TERMS AND PROVISIONS OF THIS SECTION CONSTITUTE A
MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
SECTION 12.05. Notices. Except as otherwise expressly
provided in this Agreement, any notice shall be conclusively deemed
to have been received by a party hereto and to be effective (i) if
sent by regular mail or commercial delivery service, on the day on
which delivered to such party at its address set forth below its
name on the signature pages hereto (or at such other address as
such party shall specify to the other parties hereto in writing),
(ii) if sent by telex, graphic scanning or other telecopy
communications of the sending party, when delivered by such
equipment to the number set forth below its name on the signature
pages hereto and confirmed by telephone or (iii) if sent by
registered or certified mail, on the day on which delivered to such
party (or delivery is refused), addressed to such party at such
address. Any notices required to be delivered to the Rating Agency
under this Agreement or any of the other Facility Documents shall
be addressed to the Rating Agency at the following address (or to
such other address as the Rating Agency may hereafter specify to
the other parties hereto in writing): Standard & Poor's
Corporation, 25 Broadway, Attn: Asset-Backed Surveillance Group,
New York, NY 10004, Telephone: (212) 208-8000; Telecopy: (212)
412-0225.
SECTION 12.06. Survival of Agreement. All covenants,
agreements, representations and warranties made herein and in the
certificates delivered pursuant hereto shall survive the making of
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the Revolving Loans and the issuance of any Letters of Credit and
the execution and delivery of this Agreement and shall continue in
full force and effect until the Collection Date has occurred and
all Letters of Credit issued hereunder have expired; provided,
however, that the indemnities contained in Sections 3.07, 4.06,
4.08, 10.03, 11.07 and 12.07 of this Agreement and the obligations
of the parties hereto under Section 12.08, shall be continuing and
shall survive any termination of this Agreement.
SECTION 12.07. Expenses; Indemnification. In addition
to the indemnification provisions set forth in Article X, WGRC
shall pay on demand (i) all reasonable out-of-pocket fees and
expenses (including reasonable attorneys fees and expenses) of the
Agents incurred in connection with the negotiation, preparation,
execution, delivery, administration, amendment, modification and
waiver of this Agreement and the other Facility Documents and the
making and repayment of the Revolving Loans and (ii) all out-of-
pocket fees and expenses of the Agents and the Banks (including
reasonable attorneys' fees and expenses of a single set of counsel
for the Banks which counsel shall be selected by the Facility
Agent, shall be reasonably acceptable to the Majority Banks and
shall be a major New York City law firm of international
reputation) incurred from and after a Liquidation Event in
connection with the enforcement of this Agreement and the other
Facility Documents against WGRC and the Sellers, including, without
limitation, any Servicer Fees paid to any third party other than
WGRC or the Sellers for services rendered to the Banks and the
Agents in collecting the Receivables and the other Purchased
Assets. In addition, WGRC will pay any and all stamp and other
taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing, recording or enforcement of
this Agreement or the other Facility Documents, and hereby
indemnifies and saves the Agents and the Banks harmless from and
against any and all liabilities with respect to or resulting from
any delay in paying or omission to pay such taxes and fees. All
payments owing by WGRC under this Section 12.07 shall be made
subject to the terms of Sections 9.07(c) and 9.08 hereof.
SECTION 12.08. Confidentiality. Each of the Agents, the
Issuing Bank and the Banks hereby acknowledges that the Records and
other information which it or WGRC receives from the Sellers may
contain information in which WGRC or the Sellers have a proprietary
interest and which may not, at the time of assignment and/or
delivery, be generally available to and known by the public
(including, without limitation, information relating to WGRC or the
Sellers contained in the Information Memorandum). Each of the
Agents, the Issuing Bank and the Banks hereby agrees, for the
benefit of WGRC and the Sellers, to maintain as confidential all
such information obtained from the Sellers or WGRC and not to
disclose such information to any other Person, provided, however,
that nothing in this Section 12.08 shall (x) impose any liability
on any Agent, Bank or Issuing Bank which has acted in accordance
with its customary standards for maintaining the confidentiality of
information relating to its corporate customers and (y) prevent any
Person from disclosing such information (i) to any permitted
assignee of WGRC, the Agents, the Issuing Bank or any Bank (or
their permitted prospective participants and assignees), provided
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that each such party agrees in writing, for the benefit of WGRC and
the Sellers, (x) to use such information and keep such information
confidential in accordance with the same terms set forth herein and
(y) that it will not disclose such information to any of its
Affiliates which is not a financial institution or a parent company
of a financial institution, (ii) to its employees, agents,
attorneys, auditors and accountants, (iii) subject to the further
requirements set forth in this Section 12.08, upon the order of any
court or administrative agency or upon the request or demand of any
regulatory agency, authority or official having jurisdiction over
the Agents, the Issuing Bank or Bank, as the case may be,
(iv) which has (other than through a breach of this Section 12.08)
been obtained from any Person other than WGRC, any Seller or any
other party hereto, or (v) to the extent that such information
(other than through a breach of this Section 12.08, has become
generally available to and known by the public subsequent to the
time of delivery hereunder. Any Bank, Agent or Issuing Bank (a)
will provide WGRC with prompt written notice of any subpoena or any
request or requirement by any governmental authority (other than
any such request or requirement in connection with an audit or
other regulatory review of a financial institution) for disclosure
of any confidential information so that WGRC and/or the Sellers may
seek a protective order or other appropriate remedy prior to such
disclosure and (b) shall consult with WGRC to a reasonable extent
on the advisability of taking legally available steps to resist or
narrow such request or requirement (it being understood that, after
such notice and consultation, such party shall be under no further
obligations to WGRC under this Section 12.08 to refrain from
disclosure in connection with such proceeding during the pendency
thereof as provided under clause (iii) of the immediately preceding
sentence). In the event that such protective order or other remedy
is not obtained, the affected Bank, Agent or Issuing Bank will
exercise reasonable efforts (x) to limit the information disclosed
to such information which it is legally required to disclose and
(y) to obtain assurance that confidential treatment will be
accorded any such information so disclosed, in each case only to
the extent that such efforts would not cause the affected Bank,
Agent or Issuing Bank to incur costs which it deems to be material.
SECTION 12.09. No Recourse. The obligations of WGRC
hereunder shall be solely its obligations and shall in all respects
be non-recourse to all of its officers, directors, controlling
persons or stockholders (including, without limitation, the
Sellers), and each of the Agents and the Banks acknowledges the
same with respect to WGRC and, to the fullest extent permitted by
law, waives any such recourse and any claim against any of such
parties arising hereunder; provided, however, that (a) the
foregoing shall be without prejudice to the rights that the Agents
and the Banks may have against the Sellers under the Receivables
Sale Agreement or for a breach of Wyman's duties as Servicer and
(b) nothing herein shall constitute a waiver of any rights the
Agents or any Bank may have against any Person on account of any
claim for intentional fraud, intentional deceit or intentional
material misrepresentation or omission.
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SECTION 12.10. No Proceedings. Each of the Agents and
the Banks hereby agrees that it will not institute against WGRC any
involuntary proceeding of the type referred to in the definition of
"Insolvency Event" so long as this Agreement remains in full force
and effect and for at least one year and one day following
termination of this Agreement.
SECTION 12.11. Execution in Counterparts; Severability.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
In case any provision in or obligation under this Agreement shall
be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 12.12. Entire Agreement. This Agreement,
together with the other Facility Documents, including the exhibits
and schedules hereto and thereto, contains a final and complete
integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the
entire agreement among the parties hereto with respect to the
subject matter hereof, superseding all previous oral statements and
other writings with respect thereto.
SECTION 12.13. Exhibits and Schedules. Upon the
execution and effectiveness of any Assumption Agreement pursuant to
Section 2.06 of the Receivables Sale Agreement, each of the
applicable schedules and exhibits hereto shall be automatically
deemed amended in accordance with such Assumption Agreement,
without any further action on the part of any of the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers and
delivered as of the day and year first above written.
WYMAN-GORDON RECEIVABLES CORPORATION
By: /s/ Luis E. Leon
Title: President
Notice Address:
P.O. Box 181
244 Worcester Street
North Grafton, Massachusetts 01536
Telephone: 508-839-8350
Telecopy: 508-839-7529
SHAWMUT BANK, N.A., individually,
as Facility Agent, as Collateral
Agent and as Issuing Bank
By: /s/ Matt O'Keefe
Title: Vice President
Notice Address:
446 Main Street - WO-10608
Worcester, Massachusetts 0160
Attention: Asset-Based Lending
Telephone: 508-893-4259
Telecopy: 508-793-4110
With copies to:
777 Main Street MSN-987
Hartford, Connecticut 06115
Attn: Suzanne Fischetti
Telephone: (203) 986-2226
Telecopy: (203) 986-4191
ABBEY NATIONAL TREASURY SERVICES PLC
By: /s/ Jonathan C. Nicholls
Title: Director
Notice Address:
Abbey House/Baker Street
London, NW1 6XL
UNITED KINGDOM
Attn: Head of Corporate Finance
Telephone: 011-44-71-612-4722
Telecopy: 011-44-71-612-4146
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BANCO DI NAPOLI
By: /s/ Francesco Di Mario
Title: Vice President
By: /s/ Claude P. Mapes
Title: First Vice President
Notice Address:
277 Park Avenue
New York, New York 10172-0002
Telephone: 212-872-2415
Telecopy: 212-872-2426
BANQUE ET CAISSE D'EPARGNE DE L'ETAT,
LUXEMBOURG
By: /s/ Paul Guillaume/ /s/ John Dhur
Title: Conseiller De Direction/
Conseiller De Direction
Notice Address:
1+2 Place de Metz
L1930 Luxembourg
GRAND DUCHY DE LUXEMBOURG
Attn: John Dhur
Telephone: 011-352-4015-4296
Telecopy: 011-352-4015-4284
With Copies to:
1211 Avenue of the Americas, 24th Floor
New York, NY 10036-8701
Patrick Wallerand
Attn: Patrick Wallerand
Telephone: 212-921-1136
Telecopy: 212-921-1950
RAIFFEISEN ZENTRALBANK OSTERREICH AG
By: /s/ Martin Gruell/ /s/ Michael Meyer
Title: Vice President/Manager
Notice Address:
Am Stadtpark 9
A-1030 Vienna
AUSTRIA
Attn: Kurt Bruckner
Telephone: 43-1-71707-1040
Telecopy: 43-1-71707-1473
With Copies to:
609 Fifth Avenue
New York, NY 10017
Attn: John Valiska
Telephone: 212-593-7593
Telecopy: 212-593-9870
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ANNEX I
DEFINED TERMS
When used in (i) that certain Receivables Purchase and Sale
Agreement by and among Wyman-Gordon Receivables Corporation as
purchaser and Wyman-Gordon Company, Wyman-Gordon Investment
Castings, Inc. and Precision Founders Inc. as sellers and (ii) that
certain Revolving Credit Agreement by and among Wyman-Gordon
Receivables Corporation, the "Banks", the "Collateral Agent" and
the "Facility Agent" (as each such term is defined below),
capitalized terms used in either such agreement and not otherwise
defined therein shall have the meanings set forth below:
"Accrued Carrying Costs" shall mean, as of any date, the sum
of (i) accrued and unpaid Reserved Carrying Costs as of such date
plus (ii) without duplication, the amount of Reserved Carrying
Costs that will, or are estimated to, have accrued by the next
Settlement Date as set forth in the then-effective Settlement
Statement.
"Actual Dilution" shall mean, for any Collection period, the
aggregate amount of Dilution during such Collection Period less, if
WGRC shall so elect with respect to any one and only one
Receivable, the Dilution for such Receivable to the extent arising
from any credits or series of related credits to the same Obligor,
where such credit or credits (i) exceed in the aggregate $100,000;
(ii) are granted for a billing error or related billing errors; and
(iii) are posted no later than five (5) Business Days after the
original invoice date for such Receivable.
"Adjusted Loss to Liquidation Ratio" shall mean the Loss to
Liquidation Ratio for all of the Receivables, recalculated to
exclude, from the numerator thereof, those Write-Offs recognized
and (without duplication) Receivable Notes issued during the
applicable three Collection Periods on account of Receivables owed
by a particular Obligor and its Consolidated Affiliates whenever
the aggregate amount of such Write-Offs recognized and Receivable
Notes taken during the applicable three Collection Periods on
account of such Obligor and its Consolidated Affiliates exceeds
$500,000. The underlying calculations for each of the six
Collection Periods preceding the first Settlement Date to be used
in future calculations of the Adjusted Loss to Liquidation Ratio
shall be as set forth in such Schedule 1.
"Affected Bank" shall have the meaning ascribed to such term
in Section 4.05 of the Revolving Credit Agreement.
"Affiliate" shall mean, with respect to any Person, a Person:
(i) that directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with,
such Person; (ii) that beneficially owns or holds 5% or more of any
class of the voting stock (or, in the case of a Person that is not
a corporation, 5% or more of the equity interest) of such Person;
or (iii) 5% or more of the voting stock (or, in the case of a
Person that is not a corporation, 5% or more of the equity
interest) of which is beneficially owned or held, directly or
indirectly, by such Person. The term "control" shall mean the
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possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through the ownership of voting stock or any equity interest, by
contract, or otherwise. Notwithstanding the foregoing, (i) neither
the Banks, the Facility Agent nor the Collateral Agent shall be
deemed an "Affiliate" of WGRC or Wyman and (ii) so long as Cooper
Industries, Inc. beneficially owns less than 50% of the aggregate
voting stock of Wyman, Cooper Industries, Inc. shall not be deemed
an "Affiliate" of Wyman.
"Aged Receivables Ratio" shall mean the aged receivables ratio
calculated in the most recent Settlement Statement, which ratio
(expressed as a percentage) shall equal a fraction,
(1) the numerator of which equals the sum of (i) the aggregate
Outstanding Balances of Receivables (other than Termination
Receivables, Progress Billing Receivables and excluding
Receivables owed by Tier-1 Obligors) which were from 210 to
240 days past invoice date as of the most recent Cut-Off Date
plus (ii) the aggregate Outstanding Balances of Receivables
(other than Termination Receivables and Progress Billing
Receivables) which were (A) written off as uncollectible
during the most recently ended Collection Period, (B) not more
than 240 days past invoice date at the time of such write-off
and (C) not Receivables of Obligors of the type described in
clause (a) of the definition of "Eligible Obligor"; and
(2) the denominator of which equals the aggregate Original
Balances of all new Receivables (other than Termination
Receivables and Progress Billing Receivables) generated during
the Collection Period that occurred seven (7) Collection
Periods prior to the most recently ended Collection Period, as
determined as of the Cut-Off Date for such seventh prior
Collection Period.
The Aged Receivables Ratio calculated in any Settlement Statement
shall be the Aged Receivables Ratio from the Settlement Date
relating thereto until the next Settlement Date. The Aged
Receivables Ratio from the Effective Date until the first
Settlement Statement shall be as set forth on Schedule 1 hereto and
the underlying calculations for each of the seven Collection
Periods preceding the first Settlement Date to be used in future
calculations of the Aged Receivables Ratio shall be as set forth in
such Schedule 1.
"Agent" shall mean either the Facility Agent or the Collateral
Agent, as the context requires, and "Agents" shall mean each of the
Facility Agent and the Collateral Agent.
"Agent Fees" shall mean the agent fees owed by WGRC to Shawmut
Bank, N.A., as the Facility Agent and as the Collateral Agent (or
any successor Agents), as described in Section 4.02(c) of the
Revolving Credit Agreement.
"Aggregate L/C Amount" shall mean, at any time, the then
aggregate outstanding face amount of the Letters of Credit.
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"Aggregate Loan Amount" shall mean, at any time, the then
aggregate outstanding principal amount of the Revolving Loans.
"Aggregate Net Outstandings" shall mean, on any date, the sum
of the Aggregate Loan Amount and the Aggregate L/C Amount then
outstanding minus the amount of Available Cash, if any, which is
then being retained in the Collection Account as required under
Section 2.07 of the Revolving Credit Agreement.
"Alternate Base Rate" shall mean a fluctuating rate per annum
on any date equal to the higher of (i) the rate of interest most
recently publicly announced by the Facility Agent as its "prime,"
"reference" or "base" rate and (ii) a rate of interest equal to the
sum of (A) the Federal Funds Rate, plus (B) 0.50%. The Alternate
Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Facility Agent in connection with
extensions of credit. Changes in the Alternate Base Rate shall
take effect immediately upon their occurrence.
"Applicable Reserve Ratio" shall mean, at any time, the
greater of (A) the Minimum Required Reserve Ratio and (B) the sum
of the Required Reserve Ratios then in effect; provided, however,
that from and after any Reporting Date until the next Settlement
Date, the Applicable Reserve Ratio shall mean the greater of the
above percentage or the sum of the Required Reserve Ratios as
calculated in the most recently delivered Settlement Statement.
"Assignment and Acceptance" shall mean an assignment and
acceptance in substantially the form of Exhibit 12.03 to the
Revolving Credit Agreement.
"Assumption Agreement" shall mean an Assumption Agreement in
substantially the form of Exhibit F to the Receivables Sale
Agreement whereby a Subsidiary of Wyman becomes a new Seller under
said agreement.
"Available Cash" shall mean, at any time, all funds on deposit
in the Collection Account which are in excess of the then required
amount of the Carrying Costs Reserve.
"Average Dilution Ratio" shall mean, at any time, the average
of the Dilution Ratios for the Collection Periods occurring during
the twelve Collection Periods ending on the most recent Cut-Off
Date as calculated in the most recent Settlement Statement.
"Bankruptcy Code" shall mean Title 11 of the United States
Code, as amended from time to time, or any successor statute.
"Bank Percentage" shall mean a percentage calculated in
accordance with the following formula:
BP = ALA + ALCA
BA
where:
BP = the Bank Percentage;
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ALA = the Aggregate Loan Amount;
ALCA = the Aggregate L/C Amount; and
BA = the Base Amount.
"Banks" shall mean those financial institutions which have
agreed to make Revolving Loans and to issue or participate in
Letters of Credit pursuant to the Revolving Credit Agreement.
"Base Amount", as of any date, will equal (i) the result
obtained by multiplying (x) Net Eligible Receivables as of such
date times (y) 100% minus the Applicable Reserve Ratio minus (ii)
the Discount Rate Reserve.
"Base Rate Borrowing" shall mean a Borrowing consisting
Base Rate Loans.
"Base Rate Loan" shall mean a Revolving Loan interest on which
is calculated at a per annum rate based on the Alternate Base Rate.
"Benefit Plan" means any defined benefit plan as defined in
Section 3(35) of ERISA in respect of which any Seller or any ERISA
Affiliate of a Seller is an "employer" as defined in Section 3(5)
of ERISA.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrowing" shall mean a group of Revolving Loans with a
single Funding Date or Conversion/Continuation Date and as to which
a single Interest Period is in effect.
"Business Day" shall mean any day except a Saturday, Sunday or
other day on which commercial banks in Boston, Massachusetts are
required or authorized by law to close and, when the term "Business
Day" is used (i) with respect to any Borrowing or funding under a
Letter of Credit, it shall mean any such day on which commercial
banks are open for business in New York City, New York and, so long
as any Bank's sole lending office is in a jurisdiction outside the
United States, also in such jurisdiction and (ii) with respect to
any Eurodollar Borrowing, it shall mean any such day on which
commercial banks are open for international business (including
dealings in Dollar deposits) in New York City, New York and London,
England; provided that (i) the term "Business Day" shall also not
include any day on which Wyman, with not less than ten days' prior
written notice to the Facility Agent, closes its corporate
headquarters so long as Wyman does not so close its headquarters
for more than five days in any one calendar year in addition to
those already described above and no more than two of such
additional days are consecutive and (ii) all Banks whose sole
lending offices are outside the United States shall, upon the
request of WGRC and/or the Facility Agent, give WGRC and the
Facility Agent reasonable advance notice of any holidays on which
they are not open for business during the forthcoming calendar
year.
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"Cameron" shall mean Cameron Forged Products Company, a
Delaware corporation and, following the acquisition thereof by
Wyman, a wholly-owned subsidiary of Wyman.
"Carrying Costs" shall mean, collectively, any Reserved
Carrying Costs and any Unreserved Carrying Costs.
"Carrying Costs Percentage" shall mean, on any date, the
carrying costs percentage appearing on the most recent Settlement
Statement, which percentage shall be computed, as of the most
recent Cut-Off Date by dividing (i) the sum of any Carrying Costs
(other than interest on the Revolving Loans, the L/C reimbursement
obligations or the Intercompany Notes) billed or, if not previously
billed, paid during the Collection Period then ended by (ii) the
aggregate Outstanding Balance of all Receivables as of such Cut-Off
Date. The Carrying Costs Percentage shall be determined monthly in
each Settlement Statement and such Carrying Costs Percentage shall
be the Carrying Costs Percentage for all purposes under the
Facility Documents from the Settlement Date relating thereto until
the next Settlement Date. The Carrying Costs Percentage from the
Effective Date until the first Settlement Date shall be as set
forth on Schedule 1 hereto. All fees and expenses which are paid
or payable on the Effective Date shall be excluded from the
computation of the Carrying Costs Percentage in the first
Settlement Statement.
"Carrying Costs Reserve" shall mean, on any date, the sum of
(i) Accrued Carrying Costs as of such date plus (ii) the product of
(a) the Aggregate Loan Amount times (b) the Cost of Funds Rate
divided by (c) twelve plus (iii) an accrual calculated to
reasonably approximate WGRC's estimated income tax liabilities as
owed to Wyman under the Company Documents; provided, however, that
WGRC may direct the Collateral Agent to increase the Carrying Costs
Reserve in order to simplify the daily allocations of funds
required under Section 9.07 of the Revolving Credit Agreement.
"Collateral" shall have the meaning assigned to such term in
Section 9.01 of the Revolving Credit Agreement.
"Collateral Agent" shall mean Shawmut Bank, N.A., in its
capacity as collateral agent for the Banks under the Revolving
Credit Agreement, and any successor thereto.
"Collection Account" shall have the meaning assigned to such
term in Section 9.03 of the Revolving Credit Agreement.
"Collection Agent" shall mean, at any time, the Person then
authorized pursuant to Article IX of the Revolving Credit Agreement
to service, administer and collect the Receivables on behalf of the
Banks.
"Collection Date" shall mean the date following the
Termination Date on which the aggregate Outstanding Balance of the
Receivables included in the Purchased Assets shall have been
reduced to zero, the Aggregate Loan Amount has been reduced to
zero, the Aggregate L/C Amount has been reduced to zero and/or cash
collateralized in full and WGRC has paid to the Banks and the
Agents in full all principal, interest, fees and other amounts owed
under the Facility.
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"Collection Period" shall mean each fiscal month of WGRC.
"Collections" shall mean, with respect to any Receivable or
all of the Receivables, as the case may be, all cash collections
and other cash proceeds of such Receivable or Receivables,
including, without limitation, all cash proceeds of Related
Security with respect to such Receivable or Receivables.
"Commitment" shall mean, as to any Bank, its commitment to
make Revolving Loans and to issue and/or participate in Letters of
Credit up to that dollar amount set forth opposite its name on the
signature pages to the Revolving Credit Agreement, (or, as
applicable, set forth in any amendment thereto entered into
pursuant to Section 2.10 thereof or set forth in any Assignment and
Acceptance entered into pursuant to Section 12.03 thereof) as such
dollar amount may be reduced pursuant to Section 2.06 of the
Revolving Credit Agreement or increased pursuant to Section 2.09
thereof, and "Commitments" shall mean the aggregate commitments of
the Banks to make Revolving Loans and to issue and/or participate
in Letters of Credit up to the Facility Amount (or, if less, up to
the Base Amount).
"Commitment Termination Date" shall mean the earlier of (i)
the Settlement Date which occurs not more than three calendar
months nor less than two calendar months before the fifth
anniversary of the Effective Date, as such date may be extended
pursuant to Section 2.06 of the Revolving Credit Agreement, and
(ii) the date the Commitments are reduced to zero in accordance
with Section 2.06(b) of the Revolving Credit Agreement.
"Company Documents" shall mean the following documents between
Wyman and WGRC dated as of even date with the Receivables Sale
Agreement: (i) that certain Ancillary Services and Lease Agreement
and (ii) that certain Tax Sharing Agreement.
"Consolidated Affiliate" shall mean, with respect to any
Person, any other Person whose financial statements are, or should
be under GAAP, consolidated with the financial statements of such
Person.
"Conversion/Continuation Date" shall mean, as to any
Borrowing, the date on which such Borrowing is converted into a
different Type of Borrowing or continued as the same Type of
Borrowing pursuant to Section 2.05 of the Revolving Credit
Agreement.
"Cost of Funds Rate" shall mean, on any date, the weighted
average of the per annum rates at which interest is then accruing
on the Revolving Loans (computed on the basis of a year of 365 or
366 days), as calculated in the most recent Settlement Statement
using the rates in effect and the Revolving Loans outstanding as of
the close of business on the most recent Cut-Off Date, provided
that, if no Revolving Loans are then outstanding, the Cost of Funds
Rate shall mean the lesser of (a) the Eurodollar Rate for an
Interest Period of one month plus five-eighths of one percent
(0.625%) and (b) the Alternate Base Rate, in each case as
calculated for such Cut-Off Date. The Cost of Funds Rate
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calculated in any Settlement Statement shall be the Cost of Funds
Rate from the Settlement Date relating thereto until the next
Settlement Date. The Cost of Funds Rate from the Effective Date
until the first Settlement Date shall be as set forth on Schedule
1.
"Credit and Collection Policy" shall mean, the credit policies
and procedures relating to the Receivables and Invoices as
described on Exhibit C to the Receivables Sale Agreement, as the
same may be amended from time to time in accordance with Section
4.03(c) of the Receivables Sale Agreement and Section 8.07 of the
Revolving Credit Agreement.
"Cut-Off Date" shall mean the last day of a Collection Period.
"Daily Report" shall mean the Daily Report substantially in
the form of Exhibit D-1 or Exhibit D-2 to the Receivables Sale
Agreement (as applicable) delivered by the Servicer on each
Business Day as required by Section 5.03(b) of the Receivables Sale
Agreement.
"Departing Bank" shall have the meaning ascribe to such term
in Section 2.10 of the Revolving Credit Agreement.
"Dilution" shall mean, with respect to any Receivable, the
actual reduction in the Original Balance of that Receivable as a
result of any claim or setoff of the Obligor or any other
adjustment made by the Servicer which reduction or adjustment arose
as a result of a Dilution Factor.
"Dilution Adjustment" shall mean, on any date, payments owed
by a Seller to WGRC pursuant to Section 2.02(f) of the Receivables
Sale Agreement on account of Dilution reported for such date with
respect to the Receivables, which payments shall equal the amount
of such Dilution.
"Dilution Factors" shall mean any adjustments to the
Outstanding Balances of the Receivables other than adjustments
which arise as a result of Collections, Write-Offs or the taking of
any Receivable Notes. Dilution Factors shall include, without
limitation, any credits, rebates, sales or other similar taxes,
cash discounts, volume discounts, cooperative advertising expenses,
allowances, disputes, billing errors, chargebacks, returned or
repossessed goods, inventory transfers, allowances for early
payments and other allowances and discounts that are made or
coordinated with Wyman's usual practices but shall not include
adjustments made on account of the applicable Obligor's inability
to pay the Outstanding Balance thereof.
"Dilution Horizon Variable" shall mean, at any time, an amount
calculated in the most recent Settlement Statement to equal a
fraction, the numerator of which equals the aggregate Original
Balances of new Receivables (other than Termination Receivables and
Progress Billing Receivables) generated during the two most recent
Collection Periods and the denominator of which equals the
aggregate Outstanding Balances of all Eligible Receivables as
determined on the most recent Cut-Off Date.
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"Dilution Ratio" shall mean the dilution ratio calculated in
the most recent Settlement Statement to equal a fraction (expressed
as a percentage) the numerator of which shall be Actual Dilution
during the most recent Collection Period on Receivables (other than
Termination Receivables and Progress Billing Receivables) and the
denominator of which shall be the aggregate Original Balances of
new Receivables (other than Termination Receivables and Progress
Billing Receivables) generated during the Collection Period which
ended two Collection Periods prior to the last Cut-Off Date;
provided, however, that if, for any three consecutive Collection
Periods, the aggregate amount of Actual Dilution during each such
Collection Period differs from the aggregate amount of Dilution
during such Collection Period, then the Dilution Ratio shall be
thereafter calculated using the aggregate amount of Dilution during
the most recent Collection Period (instead of Actual Dilution) on
Receivables (other than Termination Receivables and Progress
Billing Receivables) in the numerator thereof.
"Dilution Reserve Ratio" shall mean, commencing on any
Settlement Date and continuing until (but not including) the next
Settlement Date, an amount (expressed as a percentage) calculated
in accordance with the following formula:
DRR = [(2.5 x ADR) + [(HDR-ADR) x HDR)]] x DHV
ADR
where:
DRR = the Dilution Reserve Ratio;
ADR = the Average Dilution Ratio calculated in the most
recent Settlement Statement;
HDR = the highest average of the Dilution Ratios for any two
consecutive Collection Periods within the twelve
Collection Periods ending on the most recent Cut-Off
Date; and
DHV = the Dilution Horizon Variable calculated in the most
recent Settlement Statement.
The Dilution Reserve Ratio calculated in any Settlement Statement
shall be the applicable Dilution Reserve Ratio from the Settlement
Date relating thereto until the next Settlement Date. The Dilution
Reserve Ratio from the Effective Date until the first Settlement
Date shall be as set forth on Schedule 1 hereto and the Dilution
Ratios for the twelve Collection Periods preceding the first
Settlement Date to be used in future calculations of the Dilution
Reserve Ratio shall be as set forth in such Schedule 1.
"Discount Rate" shall mean, on any date, (i) the Cost of Funds
Rate plus (ii) the Carrying Costs Percentage, each as determined in
the most recent Settlement Statement with respect to which a
Settlement Date has occurred. The Discount Rate shall be
determined by the Servicer monthly in each Settlement Statement and
such Discount Rate shall be the Discount Rate for all purposes
under the Facility Documents from the Settlement Date relating
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88
thereto until the next Settlement Date. The Discount Rate from the
Effective Date until the first Settlement Date shall be as set
forth in Schedule 1 hereto.
"Discount Rate Reserve" shall mean the discount rate reserve
calculated on each day which amount shall be calculated in
accordance with the following formula:
DRR = ACC + ANO X (FR + SFR) X (3 X T TD) - CCR
360
where:
DRR = the Discount Rate Reserve;
ACC = Acccrued Carrying Costs as of the date of
determination;
ANO = the Aggregate Net Outstandings as of the most recent
Reporting Date;
FR = the higher of the Cost of Funds Rate then in effect
and the Alternate Base Rate then in effect;
SFR = the per annum rate applicable to the Servicer Fee (if
the Servicer is a party other than Wyman, any other
Seller or WGRC);
CCR = the aggregate balance of funds in the Collection
Account on the date of determination which are
retained on account of the Carrying Costs Reserve; and
TD = Turnover Days for all of the Receivables as calculated
in the most recent Settlement Statement.
"Dissenting Bank" shall have the meaning ascribed to such term
in Section 2.06(c) of the Revolving Credit Agreement.
"Dollar" and the symbol "$" shall mean lawful money of the
United States of America.
"Effective Date" shall mean the date on which the conditions
precedent to the effectiveness of the Revolving Credit Agreement
have been satisfied (and/or waived) and the Facility Agent has
confirmed the effectiveness of the Revolving Credit Agreement.
"Eligible Assignee" shall mean any commercial bank with (i) a
combined capital and surplus of at least $500,000,000 and (ii) a
rating on such bank's long-term deposits of not less than A-3 (or
the equivalent thereof) from any such rating agency.
"Eligible Obligor" shall mean each Obligor that satisfies the
following criteria:
(a) it is not the United States of America, any foreign
government, any state, province or other local govern-
mental agency, or any department, agency or instru-
mentality thereof;
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(b) it is not an Affiliate of Wyman;
(c) as of the most recent Cut-Off Date, it was not the
subject of an Insolvency Event;
(e) as of the most recent Cut-Off Date, no more than 50% of
the aggregate Receivables owed by such Obligor and its
Consolidated Affiliates were (for reasons other than
disputes) aged more than 120 days past their respective
invoice dates; and
(f) as of the most recent Cut-Off Date, none of the past due
Receivables owed by such Obligor had been evidenced by
Receivable Notes.
"Eligible Receivable" shall mean, at any time, a Receivable
which satisfies the following criteria:
(1) Such Receivable is (i) denominated in U.S. Dollars;
(ii) non-interest bearing, and (iii) owed by an Eligible
Obligor;
(2) Such Receivable is in compliance with all applicable
laws, rules and regulations;
(3) Such Receivable represents a bona fide obligation
resulting from a sale of goods which have been shipped or
services which have been performed, and constitutes the
legally valid, binding and enforceable obligation of the
applicable Obligor in accordance with its terms;
(4) Such Receivable does not constitute a "bill and
hold" Receivable or other pre-billed obligation (including,
without limitation, any Progress Billing Receivables);
(5) Such Receivable arose from the sale of merchandise
or services in the ordinary course of the Seller's business;
(6) Such Receivable is not subject to any asserted
reduction, cancellation, refund or rebate or to any dispute,
offset, counterclaim, Lien (other than created under the
Facility Documents) or other defense, provided that (i) the
Outstanding Balance of any such Receivable which is otherwise
Eligible and is subject only in part to any of the foregoing
shall be Eligible to the extent not subject to any such
reduction, cancellation, refund, rebate, dispute, offset,
counterclaim, Lien or other defense; (provided, that if any
Lien is not in the nature of a dispute, offset or counterclaim
and attaches to any individual Receivable (and not Receivables
generally), such entire Receivable shall not be an Eligible
Receivable) and (ii) if any such Lien attaches to all of the
Receivables, such Lien shall not affect the eligibility of any
Receivables but shall instead operate as a reduction in the
Net Eligible Receivables as described in clause (iii) of the
definition thereof);
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(7) As of the most recent Cut-Off Date, such Receivable
was not aged more than 120 days past its invoice date;
(8) The sale of such Receivable and the Related Security
to WGRC and the grant of a security interest therein by WGRC
to the Collateral Agent does not conflict with any law, rule
or regulation or any contractual or other restriction,
limitation or encumbrance;
(9) The sale or assignment of such Receivable does not
require the consent of the Obligor or any other Person other
than any such consent which has been previously obtained;
(10) Such Receivable was created in accordance with and
otherwise complies with all applicable requirements of the
Credit and Collection Policy;
(11) Such Receivable is an "account" (and not chattel
paper, a general intangible or an instrument) within the
meaning of the UCC;
(12) WGRC's ownership interest and the Banks' security
interests in such Receivable shall have been perfected; and
(13) Such Receivable is not a Termination Receivable.
Without limiting the foregoing, Write-Offs and Receivables
evidenced by Receivable Notes shall not constitute Eligible
Receivables. In addition, for purposes of computing Net Eligible
Receivables on any date, no Receivable evidenced by an invoice for
an amount greater than $500,000 shall qualify as an Eligible
Receivable until the sixth Business Day after the date of such
invoice.
"ERISA" means the U.S. Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means (i) any corporation which is a member
of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as WGRC or Wyman; (ii) a trade or
business (whether or not incorporated) under common control (within
the meaning of Section 414(c) of the Code) with WGRC or Wyman or
(iii) a member of the same affiliated service group (within the
meaning of Section 414(m) of the Code) as WGRC or Wyman, any
corporation described in clause (i) above or any trade or business
described in clause (ii) above.
"Eurodollar Borrowing" shall mean a Borrowing consisting of
Eurodollar Loans.
"Eurodollar Lending Office" shall mean, as to any Bank, the
office designated on the signature pages of the Revolving Credit
Agreement as the office through which such Bank makes Eurodollar
Loans whether or not such office is outside the United States of
America.
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91
"Eurodollar Loan" shall mean a Revolving Loan interest on
which is calculated at a per annum rate based on the Eurodollar
Rate.
"Eurodollar Rate" shall mean, with respect to any Eurodollar
Borrowing, for any Interest Period, an interest rate determined by
the Facility Agent to be the average (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates per annum at
which Dollar deposits in immediately available funds are offered to
the Facility Agent's Eurodollar Lending Office two Business Days
prior to the beginning of such Interest Period by prime banks in
the interbank eurodollar market as at or about 10:00 a.m., Boston
time, for delivery on the first day of such Interest Period, for
the number of days comprised therein and in an amount equal to the
amount of such Eurodollar Borrowing.
"Excess Concentration Balances" shall mean for any Obligor and
its Consolidated Affiliates, the aggregate Outstanding Balances of
otherwise Eligible Receivables due from such Obligor and, without
duplication, its Consolidated Affiliates which, expressed as a
percentage of the aggregate Outstanding Balances of all Eligible
Receivables, exceeds the following percentages for the following
Obligors:
(a) 20% for any Tier-2 Obligor;
(b) 10% for any Tier-3 Obligor;
(c) 6-2/3% for any Tier-4 Obligor; and
(d) 4% for any Tier-5 Obligor;
provided, that WGRC may, by notice thereof in any Settlement
Statement (with concurrent notice to the Rating Agency), increase
or decrease the percentages set forth in the foregoing clauses for
all subsequent Collection Periods (until further changed in
accordance with the terms hereof) so long as (i) no Liquidation
Event or Unmatured Liquidation Event shall have occurred and be
continuing at the time such Settlement Statement is delivered, (ii)
the percentage set forth in clause (b) above shall at all times be
equal to one-half of the percentage in clause (a) above, (iii) the
percentage set forth in clause (c) above shall at all times be
equal to one-third of the percentage in clause (a) above, and (iv)
the percentage set forth in clause (d) above shall at all times be
equal to one-fifth of the percentage in clause (a) above. Any such
change to the foregoing percentages shall result in a corresponding
change to the Minimum Required Reserve Ratio, as set forth in the
definition thereof.
"Excess Foreign Obligor Balances" shall mean, as of any
date, the dollar amount by which the aggregate Outstanding Balances
of otherwise Eligible Receivables owing from Obligors which are not
residents of the United States or Canada and do not have a dollar-
denominated rating from the Rating Agency as of such day (other
than any such Receivables payment of which is supported by a letter
of credit or guarantee (i) issued by a domestic banking institution
rated at least "A" by the Rating Agency and (ii) assigned to the
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92
Collateral Agent) exceeds five percent (5%) of the aggregate
Outstanding Balances of all Eligible Receivables as of such day.
"Extension Request" shall have the meaning ascribed to such
term in Section 2.06(c) of the Revolving Credit Agreement.
"Facility" shall mean the facility under the Revolving Credit
Agreement for Revolving Loans and for the issuance of Letters of
Credit.
"Facility Agent" shall mean Shawmut Bank, N.A., in its
capacity as agent for the Banks under the Revolving Credit
Agreement, and any successor thereto.
"Facility Amount" shall mean $65,000,000, as the same may be
increased pursuant to Section 2.09 of the Revolving Credit
Agreement and/or reduced pursuant to Section 2.06 of the Revolving
Credit Agreement.
"Facility Documents" shall mean collectively, the Receivables
Sale Agreement, the Revolving Credit Agreement, the Lock-Box
Agreements, the Company Documents, and all other agreements,
documents and instruments delivered pursuant thereto or in
connection therewith.
"Federal Funds Rate" shall mean, on any day, a fluctuating
interest rate per annum equal to the rate of interest offered in
the interbank market to the Facility Agent as the overnight Federal
funds rate as of about 10:00 a.m., Boston time, on such day (or, if
such day is not a Business Day, for the next preceding Business
Day).
"Final Collection Date" shall mean the thirteenth Settlement
Date from and after the Termination Date.
"Financial Advisor" shall mean BT Securities Corporation.
"Force Majeure Event" shall mean, with respect to any Person,
any riots, acts of God or the public enemy, acts of war, acts of
terrorists, epidemics, fire, equipment or power failures, flood,
embargoes, weather, earthquakes or similar events beyond the
control of such Person.
"Funding Date" shall mean, as to any Revolving Loan, the date
on which such Revolving Loan is made pursuant to Section 2.02 of
the Revolving Credit Agreement.
"GAAP" shall mean generally accepted accounting principles as
set forth from time to time in the opinions and pro nouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by significant
segments of the accounting profession.
"Indebtedness" shall mean on any date, for any Person, without
duplication, (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
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93
arising in the ordinary course of business which are payable
according to ordinary business terms, (iii) all obligations of such
Person as lessee under leases which shall have been, or should be,
in accordance with GAAP, recorded as capital leases, (iv) all
reimbursement obligations in respect of any letters of credit, (v)
all obligations secured by any Lien on the property of such Person,
(vi) all obligations of such Person under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others
of the kinds referred to in clauses (i) through (vi) above, and
(vii) all net obligations of such Person arising under any
repurchase agreements or any interest rate or currency protection
or exchange agreements.
"Indemnified Amounts" shall have the meaning ascribed to such
term in Section 10.03 of the Revolving Credit Agreement.
"Information Memorandum" shall mean that certain Preliminary
Information Memorandum dated March 9, 1994 (as the same may have
been supplemented or otherwise updated by memorandum from the
Financial Advisor dated April 15, 1994) with respect to the
transactions contemplated under the Facility Documents.
"Initial Purchase Date" shall mean, (i) as to any Initial
Seller, the Effective Date and (ii) as to any other Seller, the
date on which WGRC makes its initial Purchase of Receivables from
such Seller.
"Initial Seller" shall mean Wyman, WGIC and PFI.
"Insolvency Event" shall mean, with respect to any Person, the
institution of any case or proceeding by or against such Person
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, dissolution, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property or the
taking of any corporate action by such Person to authorize any of
the foregoing actions.
"Intercompany Notes" shall mean the Short-Term Notes, the
Long-Term Notes and the L/C Note.
"Interest Period" shall mean:
(i) for each Eurodollar Loan comprising part of the same
Borrowing, the period commencing on the Funding Date or the
Conversion/Continuation Date of such Borrowing, as applicable,
and ending on the last day of the period selected by WGRC
pursuant to the terms of the Revolving Credit Agreement, which
period shall be one, two, or three months; and
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(ii) for each Base Rate Loan comprising part of the same
Borrowing, a period commencing on the Funding Date or the
Conversion/Continuation Date of such Borrowing and ending on
the immediately following Settlement Date, and thereafter
commencing on each Settlement Date and ending on the
immediately following Settlement Date.
provided, however, that (i) if any Interest Period would otherwise
end on a day that shall not be a Business Day, such Interest Period
shall end on the next succeeding Business Day (unless, with respect
to any Eurodollar Loan, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day) and (ii) if any
Interest Period with respect to a Eurodollar Loan would otherwise
end on a calendar day for which there is no corresponding calendar
day in the applicable subsequent calendar month, such Interest
Period shall expire on the last Business Day of such applicable
subsequent calendar month, and (iii) no Interest Period with
respect to any Eurodollar Loan shall end on a date later than the
Commitment Termination Date.
"Investment" shall mean, with respect to any Person, any
direct or indirect investment by such Person in any other Person,
whether by means of share purchase, capital contribution, loan or
otherwise, excluding the incurrence of receivables arising from
sales made or services rendered in the ordinary course of business
and excluding commission, travel and similar advances to officers,
directors and employees made in the ordinary course of such
Person's business.
"Invoice" shall mean an invoice issued by a Seller to an
Obligor in substantially one of the forms attached as Exhibit B to
the Receivables Sale Agreement, or such other writing approved by
the Facility Agent, pursuant to which such Obligor is obligated to
pay for the sale of goods, merchandise and/or services rendered by
the applicable Seller.
"IRC" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
"IRS" shall mean the Internal Revenue Service.
"Issuer" shall mean, (i) with respect to any Syndicated Letter
of Credit, each Bank in its capacity as an issuer thereof and (ii)
in the case of any Participated Letter of Credit, the Issuing Bank.
"Issuing Bank" shall mean Shawmut Bank, N.A., in its capacity
as the issuer of certain Letters of Credit pursuant to Article III
of the Revolving Credit Agreement.
"L/C Facility Sub-Amount" shall mean $35,000,000; provided,
however, that if the Facility Amount is increased pursuant to
Section 2.09 of the Revolving Credit Agreement, then the L/C
Facility Sub-Amount shall be increased by fifty percent (50%) of
the amount of such increase in the Facility Amount.
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"L/C Fee" shall have the meaning ascribed to such term in
Section 4.02(a) of the Revolving Credit Agreement.
"L/C Fronting Fee" shall have the meaning ascribed to such
term in Section 4.02(e) of the Revolving Credit Agreement.
"L/C Note" shall mean that certain L/C Note issued by WGRC in
favor of Wyman, for the benefit of Wyman and the other Sellers,
pursuant to Section 2.02(d) of the Receivables Sale Agreement.
"Letter of Credit" shall mean any letter of credit issued by
the Banks or by the Issuing Bank for the account of WGRC pursuant
to Article III of the Revolving Credit Agreement.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance,
security interest, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, the interest
of a lessor under a capitalized lease obligation, any financing
lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement, naming the
owner of the asset to which such Lien relates as debtor, under the
UCC or comparable law of any jurisdiction).
"Liquidation Event" shall mean any one of the following
events:
(a) The Settlement Statement delivered on any Reporting
Date shall show that, as of the preceding Cut-Off Date, the
Loss to Liquidation Ratio for all of the Receivables exceeded
five percent (5%); or
(b) The Settlement Statement delivered on any Reporting
Date shall show that, as of the preceding Cut-Off Date, the
Adjusted Loss to Liquidation Ratio for each of (1) the period
of three consecutive Collection Periods ending on such Cut-Off
Date and (2) the period of three consecutive Collection
Periods which immediately preceded the three Collection
Periods in subclause (b)(1), exceeded one percent (1%); or
(c) The Settlement Statements delivered on any two
consecutive Reporting Dates shall show that, as of the
preceding Cut-Off Date, the aggregate unpaid balance of
Receivables (excluding, however, Termination Receivables and
Progress Billing Receivables) which were more than 120 days
past invoice date (but which, in accordance with the Credit
and Collection Policy, had not yet been written off) exceeded
(i) until the earlier of (a) the first Cut-Off Date after
which Cameron has become a Seller and (b) December 31, 1994,
fifteen percent (15%) of the aggregate unpaid balance of all
Receivables or (ii) thereafter, twelve percent (12%) of the
aggregate unpaid balance of all Receivables; or
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(d) Either (i) failure by WGRC to make any mandatory
payment of principal or interest on the Revolving Loans when
required under the Facility Documents which failure continues
unremedied for three (3) Business Days; or (ii) failure by
WGRC or any Seller (whether individually or in its capacity as
Servicer or subservicer) to pay LIBOR breakage costs or any
Reserved Carrying Costs when due under the Facility Documents,
which failure continues unremedied for five (5) Business Days;
or (iii) failure by WGRC or any Seller (whether individually
or in its capacity as Servicer or subservicer) to pay any
other amount when due under the Facility Documents, which
failure continues unremedied for seven (7) Business Days;
provided, however, that if WGRC, the Servicer and/or a Seller
is unable to make a payment described above as a result of a
Force Majeure Event, then the time periods described above
shall be extended for so long as such Force Majeure Event
renders the Servicer, Seller or WGRC unable to make such
payment but in no event shall such extension exceed ten (10)
business days; or
(e) Any representation or warranty made by WGRC or by a
Seller (whether individually or in its capacity as the
Servicer or as subservicer) under or in connection with any
Facility Document, any Daily Report, any Settlement Statement
or other report, certificate, financial statement or
information furnished by a Seller and/or WGRC pursuant to the
Facility Documents shall prove to have been false or incorrect
in any material respect when made; provided, however, that (i)
the mistaken representation of a Receivable as an Eligible
Receivable shall not constitute a Liquidation Event unless and
until the relevant Seller has failed to make the requisite
cash payments owed under the Receivables Sale Agreement within
the time frame provided hereunder in respect of the
Noncomplying Receivables Adjustment arising from such
misrepresentation and (ii) if any such misrepresentation is
capable of cure within five (5) Business Days, then such
misrepresentation shall not constitute a Liquidation Event
unless and until WGRC or the relevant Seller, as applicable,
has failed to cure such misrepresentation within such time
period; or
(f) Any Seller (whether individually or in its capacity
as Servicer or as subservicer) shall fail to perform or
observe any term, provision, covenant, condition or agreement
contained in Article IV or Article V of the Receivables Sale
Agreement on its part to be performed or observed (other than
those referred to in clause (d) above) and any such failure
(other than failures which are not capable of cure and
failures with respect to Section 4.02(a) or Section 4.03(d) of
the Receivables Sale Agreement, either of which shall
constitute a Liquidation Event without any further lapse of
time) shall remain unremedied for five (5) Business Days or
more after written notice thereof shall have been given by
WGRC or the Facility Agent to such Seller; or
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(g) WGRC shall fail to perform or observe any term,
provision, covenant, condition or agreement contained in
Section 7.01(e) or Article VIII of the Revolving Credit
Agreement on its part to be performed or observed and, solely
with respect to Sections 8.03 and 8.13, any such failure shall
remain unremedied for five (5) Business Days or more after
written notice thereof shall have been given by the Facility
Agent to WGRC; or
(h) Either (i) any Seller shall fail to perform or
observe any other term, provision, covenant, condition or
agreement contained in the Receivables Sale Agreement or any
other Facility Document on its part to be performed or
observed (other than those covered by the other subsections of
this definition) and any such failure shall remain unremedied
for ten (10) Business Days after written notice thereof shall
have been given by WGRC or the Facility Agent to such Seller
or (ii) WGRC shall fail to perform or observe any term,
provision, covenant, condition or agreement contained in the
Revolving Credit Agreement or any other Facility Document on
its part to be performed or observed (other than those covered
by the other subsections of this definition) and any such
failure shall remain unremedied for ten (10) Business Days
after written notice thereof shall have been given to WGRC by
the Facility Agent; or
(i) An Insolvency Event shall have occurred with respect
to any Seller or WGRC; provided, however, that if such
Insolvency Event arises as a result of a involuntary
bankruptcy petition being filed against all or any Sellers but
not WGRC, the event described in this clause (i) shall not
mature into a Liquidation Event unless and until (a) such
proceeding shall continue undismissed for a period of 60 days,
(b) an order of relief shall be entered in such proceeding, or
(c) the applicable Seller shall acquiesce in such proceeding,
whichever is earliest; or
(j) Either Wyman shall cease to own (directly or
indirectly) 100% of the issued and outstanding shares of WGRC
or the Sellers shall cease to own 100% of the Intercompany
Notes, in each case free and clear of any Liens (except
Permitted Liens) or Wyman shall cease to own (directly or
indirectly) at least 80% of the issued and outstanding shares
of each other Seller; or
(k) Either the IRS or the PBGC shall have filed one or
more Liens against the assets of the Sellers or WGRC in an
aggregate amount exceeding $2,000,000 unless such amounts (i)
are adequately bonded to the satisfaction of the Facility
Agent or (ii) relate to taxes which are being contested in
good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained under GAAP; or
(l) The Servicer shall fail to perform or observe any
term, provision, covenant, condition or agreement to be
performed or observed on its part under Article V of the
Receivables Sale Agreement or under any other provision of any
other Facility Document (other than as referred to in other
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subsections of this definition) and any such failure shall
remain unremedied for five (5) Business Days after written
notice thereof shall have been given by WGRC or the Facility
Agent to the Servicer; provided, that any failure to deliver
the Daily Report on each Business Day for reasons other than a
Force Majeure Event or any failure to deliver the Settlement
Statement by the applicable Reporting Date for reasons other
than a Force Majeure Event, shall constitute a Liquidation
Event if such failure, in either case, remains unremedied for
one or more Business Days; or
(m) Either (i) WGRC shall cease to have a valid
first-priority ownership interest in the Receivables, all
Related Security or Collections therefrom or any other
Collateral; or (ii) the Collateral Agent shall cease to have a
valid first-priority security interest in the Collateral
(subject, however, in either case, to Permitted Liens); or
(n) The Aggregate Net Outstandings shall exceed the Base
Amount for a period of five or more consecutive Business Days
(after giving effect to all allocations of Collections and
purchases of Receivables made on each such day); provided,
that if such excess has resulted solely on account of a
downgrade in the rating of General Electric Company or United
Technologies Corporation (but not both) and the category
applicable to such Obligor in the definition of "Excess
Concentration Balances" has decreased by one (but not by more
than one), then a Liquidation Event shall occur under this
clause (n) only if such excess continues for a period of eight
or more consecutive Business Days; or
(o) Any proceedings shall have commenced and shall be
continuing to foreclose upon any Lien or other encumbrance on
any of the Collateral; or
(p) WGRC or any Seller shall become an "investment
company" within the meaning of the Investment Company Act of
1940, as amended; or
(q) Any non-appealable judgment or non-appealable order
for the payment of money shall be rendered against WGRC and
such judgment or order shall remain in effect and unpaid for a
period of ten (10) or more consecutive days.
"Liquidation Period" shall mean the period commencing on the
date on which the Sellers' obligation to sell and WGRC's obligation
to purchase Receivables under the Receivables Sale Agreement
terminates and continuing until the Collection Date. The
Liquidation Period shall commence on the earliest to occur of:
(i) the Commitment Termination Date;
(ii) the occurrence and continuance of a Liquidation Event
described in clause (i) or clause (p) of the definition
thereof;
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(iii) the eleventh Business Day following the occurrence and
during the continuance of a Liquidation Event described in
clause (d) of the definition thereof unless waived by the
Majority Banks or otherwise cured prior to such eleventh
Business Day;
(iv) the eleventh Business Day following the occurrence of a
Liquidation Event described in clause (n) of the definition
thereof, unless waived by the Required Banks prior to such
eleventh Business Day;
(v) the first Business Day following the date designated by
the Required Banks upon the occurrence and during the
continuance of any Liquidation Event (including, without
limitation, those described in clauses (iii), (iv) and (viii)
of this definition);
(vi) the date designated by Wyman to WGRC, to the Facility
Agent and the Banks by not less than ten (10) days nor more
than sixty (60) days prior written notice as the date on which
Wyman wishes to cease the sales of Receivables to WGRC;
(vii) the date designated by WGRC to the Sellers, to the
Facility Agent and the Banks by not less than three days nor
more than ten days prior written notice following the
occurrence and during the continuance of any Liquidation Event
as the date on which it wishes to cease the purchases of
Receivables from Wyman; or
(viii) the eleventh Business Day following Wyman's knowledge
of the occurrence of a Liquidation Event described in clause
(m) of the definition thereof, unless such Liquidation Event
is waived by the Required Banks or otherwise cured prior to
such eleventh Business Day.
"Lock-Box Account" shall mean any lock-box account or other
depositary account maintained for the purpose of receiving
Collections on the Receivables.
"Lock-Box Agreement" shall mean any agreement, in
substantially the form of Exhibit 9.03 to the Revolving Credit
Agreement, entered into among WGRC, the Collateral Agent and a
Lock-Box Bank.
"Lock-Box Bank" shall mean any of the banks holding one or
more Lock-Box Accounts.
"Long-Term Notes" shall mean those certain Long-Term Notes
issued by WGRC in favor of the Sellers on the Effective Date to
evidence WGRC's indebtedness in respect of the initial transfer of
Receivables from the Sellers.
"Loss Discount Ratio" shall mean, with respect to any Seller's
Receivables or all of the Receivables, as the case may be, the Loss
to Liquidation Ratio with respect thereto appearing on the most
recent Settlement Statement, recalculated to include in the
numerator thereof all Write-Offs and Receivables Notes taken during
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the applicable period, whether or not such Write-Offs and
Receivables Notes exceeded the Excess Concentration Balances for
the related Obligors. The underlying calculations for each of the
three Collection Periods preceding the first Settlement Date to be
used in future calculations of the Loss Discount Ratio shall be as
set forth in Schedule 1.
"Loss Reserve Ratio" shall mean, commencing on any Settlement
Date and continuing until (but not including) the next Settlement
Date, an amount (expressed as a percentage) calculated in
accordance with the following formula:
LRR = 2.5 x ARR x b
where:
LRR = the Loss Reserve Ratio;
ARR = the highest average of the Aged Receivables
Ratios for any three consecutive Collection
Periods that occurred during the period of twelve
consecutive Collection Periods ending on the most
recent Cut-Off Date; and
b = a fraction having (A) a numerator equal to the
aggregate Original Balances of all new
Receivables (other than Termination Receivables
and Progress Billing Receivables) generated
during the preceding four Collection Periods
preceding such Settlement Date, and (B) a
denominator equal to the aggregate unpaid balance
of all Eligible Receivables as calculated on the
most recent Cut-Off Date.
The Loss Reserve Ratio calculated in any Settlement Statement shall
be the applicable Loss Reserve Ratio from the Settlement Date
relating thereto until the next Settlement Date. The Loss Reserve
Ratio from the Effective Date until the first Settlement Date shall
be as set forth on Schedule 1 hereto and the underlying
calculations for each of the three Collection Periods preceding the
first Settlement Date to be used in future calculations of the Loss
Reserve Ratio shall be as set forth in such Schedule 1.
"Loss to Liquidation Ratio" shall mean, with respect to any
Seller's Receivables or all of the Receivables, as the case may be,
the applicable loss to liquidation ratio appearing on the most
recent Settlement Statement, which ratio (expressed as a percent-
age) shall be computed, as of the most recent Cut-Off Date, by
dividing (i) the excess, if any, of (A) the aggregate reduction in
the Outstanding Balances of such Receivables as a result of Write-
Offs during the three most recent Collection Periods plus without
duplication, the principal amount of all Receivable Notes taken in
respect of such Receivables during such three Collection Periods
(excluding from this clause (A), for any Obligor, Write-Offs and
Receivables Notes taken for Receivables which did not, in the
aggregate, exceed the Excess Concentration Balance for such Obligor
on the date such Receivables were written off or such Receivables
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Notes taken), over (B) any Collections received during such three
Collection Periods in respect of such Write-Offs and, without
duplication, such Receivable Notes by (ii) the aggregate amount of
Collections with respect to such Receivables received during such
three Collection Periods. The underlying calculations for each of
the three Collection Periods preceding the first Settlement Date to
be used in future calculations of the Loss to Liquidation Ratios
shall be as set forth in Schedule 1.
"Majority Banks" shall mean Banks whose Pro Rata Shares
aggregate more than fifty percent (50%).
"Material Adverse Effect" shall mean (i) any material adverse
effect upon the condition (financial or otherwise), operations,
properties or prospects of WGRC, (ii) any material adverse effect
upon the validity or enforceability of the Facility Documents or
any of the Liens created thereunder or (iii) any adverse effect
which, by itself or when taken together with all other such adverse
effects, would have a materially adverse effect on the validity,
enforceability or collectibility of the Receivables and the other
Purchased Assets taken as a whole (including, without limitation,
any such adverse effect on collectibility which arises as a result
of Wyman's or any other Seller's inability to perform its duties as
Servicer or as Collection Agent).
"Minimum Required Reserve Ratio" shall mean the sum of (i) the
Average Dilution Ratio for the most recent Cut-Off Date times the
Dilution Horizon Variable for the most recent Cut-Off Date plus
(ii) the percentage applicable from time to time to Tier-2 Obligors
with respect to the definition of Excess Concentration Balances;
provided, that in no event shall the Minimum Required Reserve Ratio
be less than fourteen percent (14%). The Minimum Required Reserve
Ratio calculated in any Settlement Statement shall be the
applicable Minimum Required Reserve Ratio from the Settlement
Statement relating thereto until the next Settlement Date. The
Minimum Required Reserve Ratio from the Effective Date until the
first Settlement Date shall be as set forth on Schedule 1 hereto.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is contributed to by WGRC,
Wyman or any ERISA Affiliate on behalf of its employees.
"Net Eligible Receivables" shall mean the aggregate
Outstanding Balances of Eligible Receivables as reported in the
most recent Daily Report minus the sum of (i) the aggregate amount
of the Excess Concentration Balances for each Obligor and its
Consolidated Affiliates then in effect, (ii) the Excess Foreign
Obligor Balances then in effect and (iii) the dollar amount of any
Liens which attach to the Eligible Receivables unless such Liens
(x) are for taxes, assessments or charges of any governmental
authority for amounts not yet due or (y) have been bonded in full
by or on behalf of the Sellers.
"Non-Usage Fee" shall have the meaning ascribed to such term
in Section 4.02(a) of the Revolving Credit Agreement.
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"Noncomplying Receivable" shall mean a Receivable which was
not an Eligible Receivable as of the date it was purchased by WGRC
from the applicable Seller.
"Noncomplying Receivables Adjustment" shall mean, with respect
to any Receivables which are identified on any date to a Seller by
WGRC as Noncomplying Receivables, the amounts owed by such Seller
to WGRC pursuant to Section 2.02(f) of the Receivables Sale
Agreement, which amounts shall equal (i) the Purchase Price
Percentage times the Original Balance of such identified
Noncomplying Receivables minus (ii) the aggregate amount of
Collections received by WGRC (and not previously the subject of an
adjustment to the Purchase Price payable pursuant to said Section
2.02(f)) with respect to any such Noncomplying Receivables and
minus (iii) the aggregate amount of Collections received by WGRC
with respect to any Noncomplying Receivables which were previously
reported to be Noncomplying Receivables and on account of which
Noncomplying Receivables Adjustments were previously made.
"Notice of Borrowing" shall mean a "Notice of Borrowing"
described in Section 2.03 of the Revolving Credit Agreement.
"Notice of Conversion/Continuation" shall mean a "Notice of
Conversion/Continuation" described in Section 2.05 of the Revolving
Credit Agreement.
"Obligations" shall have the meaning assigned to such term in
Section 9.01 of the Revolving Credit Agreement.
"Obligor" shall mean any Person obligated to make payments in
respect of a Receivable.
"Ordinary Course Expenses" shall mean the expenses of WGRC for
employee salaries, benefits, directors' fees, office lease
payments, office supplies, amounts owed under the Company
Documents, fees owed to the Lock-Box Banks, Federal, state and
local taxes and similar expenses incurred in the ordinary course of
its business other than (a) interest expense under the Intercompany
Notes and (b) other Carrying Costs specifically mentioned in the
definitions of Reserved Carrying Costs and Unreserved Carrying
Costs.
"Original Balance" shall mean, with respect to any Receivable,
the face amount of such Receivable on the date it was purchased by
WGRC, which face amount shall be calculated net of any credits
issued on the date of Purchase (or, in the case of Purchases on the
Effective Date, accrued through the date of Purchase) and reflected
in the Daily Report for such date.
"Outstanding Balance" shall mean, with respect to any
Receivable at any time, the then outstanding face amount thereof,
which is calculated by subtracting the Collections, Dilution and
Write-Offs relating to such Receivable from the Original Balance of
such Receivable.
"Participated Letter of Credit" shall mean, a Letter of Credit
issued by the Issuing Bank.
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"Permitted Investments" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having
maturities on or before the first Settlement Date after the date of
acquisition; (ii) time deposits and certificates of deposit having
maturities on or before the first Settlement Date after the date of
acquisition, maintained with or issued by any commercial bank
having capital and surplus in excess of $500,000,000 and having a
commercial paper rating not less than A-1+ or the equivalent
thereof from the Rating Agency; (iii) money market funds which are
rated AAA-m or AAA-mg by the Rating Agency; (iv) repurchase
agreements having maturities on or before the first Settlement Date
after the date of acquisition for underlying securities of the
types described in clauses (i) and (ii) above or clause (v) below
with any institution with a long term debt rating of AAA or a
commercial paper rating of A-1+; and (v) commercial paper maturing
on or before the first Settlement Date after the date of
acquisition and having a rating of not less than A-1+ from the
Rating Agency.
"Permitted Liens" shall mean (i) Liens for taxes, assessments
or charges of any governmental authority for amounts not yet due or
which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP; (ii) Liens
of landlords, carriers, warehousemen, mechanics and materialmen
imposed by law and created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves
or other appropriate provisions are being maintained in accordance
with GAAP; (iii) any right of offset of an Obligor with respect to
payment of a Receivable which has the economic effect of a priority
claim; (iv) Liens of a collecting bank under Section 4-210 of the
UCC; and (v) other Liens not described in clause (i) above in favor
of the PBGC or the IRS which either (a) do not exceed $2,000,000 in
the aggregate at any one time outstanding or (b) have been bonded
in full by or on behalf of the Sellers.
"Person" shall mean an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, government (or any
agency or political subdivision thereof) or other entity.
"PFI" shall mean Precision Founders Inc., a California
corporation and a wholly-owned subsidiary of Wyman.
"Pro Rata Share" shall mean, as to any Bank, a fraction, the
numerator of which equals the Commitment of such Bank and the
denominator of which equals the Facility Amount.
"Progress Billing Receivables" shall mean any Receivables
arising pursuant to invoices for progress billings with respect to
work not yet completed.
"Purchase" shall mean a purchase by WGRC with regard to Pur-
chased Assets from the Sellers made pursuant to Article II of the
Receivables Sale Agreement.
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"Purchase Discount Rate Reserve Ratio" shall mean, with
respect to any Seller's Receivables a percentage calculated in the
most recent Settlement Statement in accordance with the following
formula:
PDRR = TD x (DR + PD)
360
where:
PDRR = the Purchase Discount Rate Reserve Ratio
applicable to such Seller's Receivables;
TD = the Turnover Days for such Seller's Receivables
during the prior Collection Period;
DR = the Discount Rate; and
PD = a profit discount equal to three percent (3%).
"Purchase Price" shall mean, with respect to any Purchase
under the Receivables Sale Agreement, the aggregate price to be
paid by WGRC to the applicable Seller, which price shall be
computed by multiplying the aggregate Original Balances of the
Seller's Receivables included in such Purchase by the then
effective Purchase Price Percentage applicable to such Receivables,
as such amount may be adjusted to reflect any Dilution Adjustment
or Noncomplying Receivables Adjustment calculated for the
applicable date of Purchase pursuant to Section 2.02(f) of the
Receivables Sale Agreement.
"Purchase Price Percentage" shall mean, with respect to any
Seller's Receivables, a percentage calculated in the most recent
Settlement Statement to equal 100% minus the sum of (i) the Loss
Discount Ratio applicable thereto and (ii) the Purchase Discount
Rate Reserve Ratio applicable thereto, as each such ratio has been
computed in such Settlement Statement. The Purchase Price
Percentage calculated in any Settlement Statement shall be the
applicable Purchase Price Percentage from the Settlement Date
relating thereto until the next Settlement Date. From the
Effective Date to the first Settlement Date, the applicable
Purchase Price Percentage shall be as set forth in Schedule 1
hereto.
"Purchased Assets" shall mean, with respect to any Purchase,
(a) the Receivables sold to WGRC by the applicable Seller on the
date thereof, (b) all Related Security relating to such Receivables
and (c) all Collections with respect to, and other proceeds of,
such Receivables and Related Security (including, without limita-
tion, all Receivable Notes received in respect thereof).
"Rating Agency" shall mean Standard & Poor's Corporation
("Standard & Poor's") or any successor rating agency acceptable to
the Facility Agent which issues a rating letter with respect to the
Facility in substitution for Standard & Poor's. If Standard &
Poor's is replaced as the Rating Agency, references to particular
ratings shall mean the corresponding rating of such successor
Rating Agency.
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"Receivable" shall mean all indebtedness of an Obligor
(whether constituting an account, chattel paper, or general
intangible) arising from the sale of merchandise or the furnishing
of services by a Seller, including all interest or finance charges
and other obligations of such Obligor with respect thereto, but
excluding any such indebtedness which is not denominated in U.S.
dollars. Until the Collection Date, each Write-Off and each
Receivable Note shall continue to constitute a Receivable until the
indebtedness of the Obligor thereunder shall have been paid in
full, extinguished by agreement between the applicable Seller and
such Obligor or otherwise extinguished pursuant to applicable law.
"Receivable Notes" means any promissory notes issued by an
Obligor to evidence a Receivable.
"Receivables Sale Agreement" shall mean that certain
Receivables Purchase and Sale Agreement dated as of May 20, 1994 by
and between the Sellers and WGRC, as the same may be amended,
restated or otherwise modified from time to time.
"Records" shall mean all Invoices and other documents, books,
records and other media for the storage of information (including,
without limitation, tapes, disks, computer programs and databases
and related property) maintained with respect to the Receivables
and the related Obligors.
"Regulations G, T, U and X" shall mean Regulations G, T, U and
X, respectively, as promulgated by the Board, or any similar
regulations substituted for any of the foregoing.
"Related Security" shall mean with respect to any Receivable:
(i) all of the applicable Seller's rights under the
Invoices;
(ii) all guarantees, indemnities, warranties, chattel
paper, insurance policies and proceeds and security
agreements and other agreements or arrangements of
whatever character from time to time supporting or
securing payment of such Receivable whether pursuant
to the Invoice related to such Receivable or
otherwise; and
(iii) all of the applicable Seller's residual right, title
and interest in and to all goods and/or merchandise
(including returned, repossessed or foreclosed goods
and/or merchandise) the sale of which gave rise to
such Receivable;
(iv) all of the applicable Seller's rights in, to and
under the (A) Records, (B) instruments, checks and
other forms of payment and (C) general intangibles
relating to such Receivable;
(v) when used with respect to WGRC, all of WGRC's right,
title and interest to and rights under the
Receivables Sale Agreement;
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(vi) the assignment to WGRC or the Collateral Agent, as
applicable, of all UCC financing statements covering
any collateral security for the payment of any of the
foregoing; and
(vi) all proceeds of the foregoing.
"Replacement Bank" shall have the meaning ascribed to such
term in Section 2.10 of the Revolving Credit Agreement.
"Reporting Date" shall mean the 15th calendar day of any
calendar month or, if such day is not a Business Day, then the
immediately succeeding Business Day.
"Required Banks" shall mean Banks whose Pro Rata Shares
aggregate more than 66 2/3%.
"Required Reserve Ratios" shall mean, as of any date, the Loss
Reserve Ratio and the Dilution Reserve Ratio which are then in
effect.
"Reserved Carrying Costs" shall mean any of the following
items: (i) interest on any Revolving Loans and L/C reimbursement
obligations owed under the Revolving Credit Agreement (exclusive of
any default interest owed under Sections 4.01(d) and 4.03(b)
thereof); (ii) interest on the Intercompany Notes (exclusive of any
default interest owed with respect thereto); (iii) L/C Fees; (iv)
L/C Fronting Fees; (v) Non-Usage Fees; (vi) Agent Fees; (vii)
letter of credit administrative fees; (viii) Ordinary Course
Expenses of WGRC not in excess of $50,000 in the aggregate during
any Collection Period; and (ix) Servicer Fees.
"Responsible Officer" shall mean, with respect to any Person,
any president, chairman of the board of directors, vice-president
(including any senior or executive vice-president) or treasurer of
such Person, in each case, acting in his or her capacity as such.
"Revolving Credit Agreement" shall mean that certain Revolving
Credit Agreement dated as of May 20, 1994 by and among WGRC, the
Facility Agent, the Issuing Bank, the Collateral Agent and the
Banks, as the same may be amended, restated or otherwise modified
from time to time.
"Revolving Loan" shall have the meaning ascribed to such term
in Section 2.01 of the Revolving Credit Agreement.
"Revolving Note" shall have the meaning ascribed to such term
in Section 2.02 of the Revolving Credit Agreement.
"Seller" shall have the meaning ascribed to such term in the
Receivables Sale Agreement.
"Seller's Receivable" shall mean (i) as to WGIC and PFI, a
Receivable arising from the sale of merchandise or the furnishing
of services by either of them and (ii) as to any other Seller, a
Receivable arising from the sale of merchandise or the furnishing
of services by such Seller.
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"Servicer" shall mean, at any time, the Person then authorized
pursuant to Article V of the Receivables Sale Agreement to service,
administer and collect the Receivables on behalf of WGRC.
"Servicer Fee" shall mean the fee paid to the Servicer by WGRC
pursuant to Section 5.03(c) of the Receivables Sale Agreement.
"Servicer Termination Event" shall mean (i) a Liquidation
Event or (ii) an Unmatured Liquidation Event which arises from the
gross negligence or willful misconduct of the Servicer in the
performance of its obligations under the Receivables Sale Agreement
or from a breach of the representations and warranties contained in
Section 3.03 of the Receivables Sale Agreement or (iii) any
Insolvency Event relating to the Servicer.
"Settlement Date" shall mean, with respect to any Collection
Period, the 20th calendar day of the next succeeding Collection
Period, or if such day is not a Business Day, then the immediately
succeeding Business Day.
"Settlement Statement" shall mean a report prepared by the
Servicer pursuant to Section 5.03(b) of the Receivables Sale
Agreement and signed by officers of WGRC and of the Collection
Agent which, among other things, certifies that no Liquidation
Event or Unmatured Liquidation Event has occurred and is
continuing, or, if any such Liquidation Event or Unmatured
Liquidation Event has occurred and is continuing, describing such
event and the steps, if any, which are being taken in respect
thereof. Each Settlement Statement shall be in substantially the
form of Exhibit E-1 or Exhibit E-2, as applicable, to the
Receivables Sale Agreement.
"Short-Term Loans" shall mean those certain loans which the
Sellers may advance to WGRC from time to time in lieu of cash
payment of the Purchase Price as provided in Section 2.02 of the
Receivables Sale Agreement, which loans are evidenced by and
subject to the terms and provisions of the Short-Term Note.
"Short-Term Notes" shall mean those certain Short-Term Notes
issued by WGRC in favor of the Sellers pursuant to Section 2.02(e)
of the Receivables Sale Agreement.
"Subsidiary" shall mean, as to any Person, any corporation or
other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the Board of
Directors or other Persons performing similar functions are at the
time directly or indirectly owned by such Person.
"Syndicated Letter of Credit" shall mean, a Letter of Credit
issued severally by the Banks.
"Taxes" shall have the meaning ascribed to such term in
Section 4.08 of the Revolving Credit Agreement.
"Termination Date" shall mean the date on which the
Liquidation Period commences.
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"Termination Receivables" shall mean Receivables which are
owed for expenses and penalties on account of the termination of a
purchase order and/or long-term supply arrangement.
"Tier-1 Obligor" shall mean any Obligor (i) that has (or whose
corporate parent has) a commercial paper rating from the Rating
Agency of at least A-1+ or (ii) that does not have (and does not
have a corporate parent which has) a commercial paper rating of at
least A-1+ but does have (or whose corporate parent has) a senior
actual or implied debt rating of at least AAA.
"Tier-2 Obligor" shall mean any Obligor (other than a Tier-1
Obligor) (i) that has (or whose corporate parent has) a commercial
paper rating from the Rating Agency of at least A-1 or (ii) that
does not have (and does not have a corporate parent which has) a
commercial paper rating of at least A-1 but does have (or whose
corporate parent has) a senior actual or implied debt rating of at
least A.
"Tier-3 Obligor" shall mean any Obligor (other than a Tier-1
Obligor or a Tier-2 Obligor) (i) that has (or whose corporate
parent has) a commercial paper rating from the Rating Agency of at
least A-2 or (ii) that does not have (and does not have a corporate
parent which has) a commercial paper rating of at least A-2 but
does have (or whose corporate parent has) a senior actual or
implied debt rating of at least BBB+.
"Tier-4 Obligor" shall mean any Obligor (other than a Tier-1
Obligor, a Tier-2 Obligor or a Tier-3 Obligor) (i) that has (or
whose corporate parent has) a commercial paper rating from the
Rating Agency of at least A-3 or (ii) that does not have (and does
not have a corporate parent which has) a commercial paper rating of
at least A-3 but does have (or whose corporate parent has) a senior
actual or implied debt rating of at least BBB-.
"Tier-5 Obligor" shall mean any Obligor which is not a Tier-1
Obligor, a Tier-2 Obligor, a Tier-3 Obligor or a Tier-4 Obligor.
"Turnover Days" shall mean, with respect to any Seller's
Receivables or all of the Receivables, as the case may be, as
calculated in any Settlement Statement, that period (expressed in
days) calculated as (a) one-half of the sum of the aggregate
Outstanding Balances of such Receivables as of the last two Cut-Off
Dates divided by (b) the aggregate Original Balances of such
Receivables generated during the most recent Collection Period
multiplied by (c) the number of days in such Collection Period.
From the Effective Date until the first Settlement Statement, the
Turnover Days for each Seller's Receivables and all of the
Receivables shall be calculated as set forth on Schedule 1, and the
underlying calculations for each of the three Collection Periods
preceding the first Settlement Date to be used in future
calculations of such Turnover Days shall be as set forth in such
Schedule 1.
"Type" of Borrowing shall mean a Base Rate Borrowing or Euro-
dollar Borrowing, as the case may be.
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"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the State of New York, except to the extent that
the validity or perfection of any Lien created under any Facility
Document or any remedy in respect thereof is governed by the laws
of a jurisdiction other than the State of New York, in which case
(but only to such extent) the term "UCC" shall mean the Uniform
Commercial Code as in effect in such other jurisdiction.
"Unmatured Liquidation Event" shall mean an event or condition
which, with the passage of time or the giving of notice or both
would constitute a Liquidation Event.
"Unreserved Carrying Costs" shall mean any of the following
items: (i) default interest owed under Sections 4.01(d) or 4.03(b)
of the Revolving Credit Agreement, Section 2.04 of the Receivables
Sale Agreement or the Intercompany Notes; (ii) Ordinary Course
Expenses of WGRC in excess of $50,000 in the aggregate during any
Collection Period; (iii) indemnification amounts owed under
Sections 3.07(a), 4.06 and 9.04(b) of the Revolving Credit
Agreement; and (iv) other amounts payable in accordance with
Sections 4.04, 4.08, 9.05, 10.03 and 12.07 of the Revolving Credit
Agreement.
"WGIC" shall mean Wyman-Gordon Investment Castings, Inc., a
Delaware corporation and a wholly-owned subsidiary of Wyman.
"WGRC" shall mean Wyman-Gordon Receivables Corporation, a
Delaware corporation.
"WGRC Percentage" shall mean 100% minus the Bank Percentage.
"Write-Off" shall mean all or a portion of a Receivable that,
consistent with the applicable Credit and Collection Policy, has
been or should be (i) specifically assigned to a category reserved
for doubtful Receivables or otherwise recorded on the applicable
Seller's or WGRC's books as a Receivable the collectibility of
which is doubtful or (ii) (without duplication) written off such
Seller's or WGRC's books as uncollectible.
"Wyman" shall mean Wyman-Gordon Company, a Massachusetts
corporation.
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