EXECUTION
VERSION
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 7, 1990
AMONG
DANAHER CORPORATION,
THE FINANCIAL INSTITUTIONS LISTED HEREIN
AND
BANKERS TRUST COMPANY,
as Agent
DANAHER CORPORATION
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. . . . . . . .1
1.1. Certain Defined Terms. . . . . . . . . . . . . . . . . .1
1.2. Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement. . . . . . . . 25
1.3. Other Definitional Provisions. . . . . . . . . . . . . 25
SECTION 2.
AMOUNTS AND TERMS OF LOANS AND
LETTERS OF CREDIT. . . . 26
2.1. Revolving Loans, Swingline Loans and Bid Rate
Loans. . 26
2.2. Term Loans . . . . . . . . . . . . . . . . . . . . . . 35
2.3. Interest on the Loans. . . . . . . . . . . . . . . . . 36
2.4. Letters Of Credit. . . . . . . . . . . . . . . . . . . 40
2.5. Fees. . . . . . . . . . . . . . . . . . . . . . . 45
2.6. Prepayments and Payments: Reductions in
Commitments. . 47
2.7. Use of Proceeds. . . . . . . . . . . . . . . . . . . . 51
2.8. Special Provisions Governing CD Rate Loans and
Eurodollar
Rate Loans . . . . . . . . . . . . . . . . . . . . . . 52
2.9. Capital Adequacy Adjustment. . . . . . . . . . . . . . 56
2.10. Pledge and Guaranties . . . . . . . . . . . . . . 57
2.11. Additional Lenders. . . . . . . . . . . . . . . . 57
SECTION 3. CONDITIONS TO LOANS
AND LETTERS OF CREDIT57
3.1. Conditions to Effectiveness of this Agreement. . . . .
57
3.2. Conditions to Letters of Credit. . . . . . . . . . . . 60
3.3. Conditions to All Loans and Letters of Credit. . . . .
60 SECTION 4. REPRESENTATIONS AND
WARRANTIES62
4.1. Organization, Powers, Good Standing and Business
. . . 62
4.2. Authorization of Borrowing, etc. . . . . . . . . . . . 63
4.3. Financial Condition. . . . . . . . . . . . . . . . . . 64
4.4. No Material Adverse Change; No Stock Payments. .
. . . 64
4.5. Title to Properties; Liens . . . . . . . . . . . . . . 64
4.6. Litigation: Adverse Facts. . . . . . . . . . . . . . . 65
4.7. Payment of Taxes . . . . . . . . . . . . . . . . . . . 65
4.8. Performance of Agreements. . . . . . . . . . . . . . . 65
4.9. Governmental Regulation. . . . . . . . . . . . . . . . 65
4.10. Securities Activities . . . . . . . . . . . . . . 65
4.11. Employee Benefit Plans. . . . . . . . . . . . . . 66
4.12. Certain Fees. . . . . . . . . . . . . . . . . . . 66
4.13. Environmental Protection. . . . . . . . . . . . . 66
4.14. Solvency. . . . . . . . . . . . . . . . . . . . . 67
4.15. Patents, Trademarks, Etc. . . . . . . . . . . . . 67
4.16. Disclosure. . . . . . . . . . . . . . . . . . . . 67
4.17. Senior Indebtedness . . . . . . . . . . . . . . . 67
4.18. Margin Stock. . . . . . . . . . . . . . . . . . . 67
SECTION 5.
AFFIRMATIVE COVENANTS . . . . . . . . . .
68
5.1. Financial Statements and Other Reports . . . . . . . .
68
5.2. Corporate Existence, Etc.. . . . . . . . . . . . . . . 71
5.3. Payment of Taxes and Claims; Tax Consolidation . .
. . 71
5.4. Maintenance of Properties; Insurance . . . . . . . . . 71
5.5. Inspection; Lender Meeting . . . . . . . . . . . . . . 72
5.6. Compliance with Laws, Etc. . . . . . . . . . . . . . . 72
5.7. Further Assurances as to Future Material
Subsidiaries. 72
5.8. Environmental Disclosure and Inspection. . . . . . . .
72
5.9. Hazardous Materials; Company s Remedial Action .
. . . 73
5.10. Equal Security for Loans and Notes. . . . . . . . 73
SECTION 6. COMPANY S NEGATIVE
COVENANTS74
6.1. Indebtedness and Contingent Obligations. . .74
6.2. Liens and Related Matters. . . . . . . . . . . . . . . 75
6.3. Investments; Joint Ventures. . . . . . . . . . . . . . 75
6.4. Restricted Junior Payments . . . . . . . . . . . . . . 76
6.5. Financial Covenants. . . . . . . . . . . . . . . . . . 77
6.6. Restriction on Fundamental Changes; Asset Sales. .
. . 77
6.7. Transactions with Shareholders and Affiliates. . . . .
78
6.8. Disposal of Subsidiary Stock . . . . . . . . . . . . . 78
6.9. Amendments or Waivers of Charter Documents and
Certain
Other Documents: Prepayments of Subordinated
Indebtedness79
SECTION 7. EVENTS OF DEFAULT. .
. . 79
7.1 Failure to Make Payments When Due. . . . . . . . . . .
79
7.2. Default in Other Agreements. . . . . . . . . . . . . . 79
7.3. Breach of Certain Covenants. . . . . . . . . . . . . . 80
7.4. Breach of Warranty . . . . . . . . . . . . . . . . . . 80
7.5. Other Defaults Under Agreement or Loan
Documents . . . 80
7.6. Involuntary Bankruptcy; Appointment of Receiver,
etc.. 80
7.7. Voluntary Bankruptcy: Appointment of Receiver,
etc.. . 81
7.8. Judgements and Attachments . . . . . . . . . . . . . . 81
7.9. Dissolution. . . . . . . . . . . . . . . . . . . . . . 81
7.10. Employee Benefit Plans. . . . . . . . . . . . . . 82
7.11. Invalidity of Guaranties or Pledge Agreement. .
. 82
7.12. Change of Control . . . . . . . . . . . . . . . . 82
SECTION 8. AGENT AND BID RATE
LOAN AGENT83
8.1. Appointment. . . . . . . . . . . . . . . . . . . . . . 83
8.2. Powers; General Immunity . . . . . . . . . . . . . . . 84
8.3. Representations and Warranties: No Responsibility
For Appraisal
of Creditworthiness. . . . . . . . . . . . . . . . . . 85
8.4. Right to Indemnity . . . . . . . . . . . . . . . . . . 85
8.5. Registered Person Treated as Owner . . . . . . . . . . 86
8.6. Successor Agent. . . . . . . . . . . . . . . . . . . . 86
SECTION 9. MISCELLANEOUS86
9.1. Assignments and Participations in Loans. . . . . . . .
86
9.2. Expenses . . . . . . . . . . . . . . . . . . . . . . . 87
9.3. Indemnity. . . . . . . . . . . . . . . . . . . . . . . 88
9.4. Set Off. . . . . . . . . . . . . . . . . . . . . . . . 89
9.5. Ratable Sharing. . . . . . . . . . . . . . . . . . . . 89
9.6. Amendments and Waivers . . . . . . . . . . . . . . . . 90
9.7. Independence of Covenants. . . . . . . . . . . . . . . 90
9.8. Notices. . . . . . . . . . . . . . . . . . . . . . . . 90
9.9. Survival of Warranties and Certain Agreements. . . .
. 91
9.10. Failure or Indulgence Not Waiver; Remedies
Cumulative91
9.11. Marshalling; Payments Set Aside . . . . . . . . . 91
9.12. Severability. . . . . . . . . . . . . . . . . . . 91
9.13. Lenders Obligations Several; Independent
Nature of Lenders
Rights . . . . . . . . . . . . . . . . . . . . . . . . 92
9.14. Headings. . . . . . . . . . . . . . . . . . . . . 92
9.15. Applicable Law. . . . . . . . . . . . . . . . . . 92
9.16. Successors and Assigns; Subsequent Lenders. . .
. 92
9.17. Consent to Jurisdiction and Service of Process. .
92
9.18. Waiver of Jury Trial. . . . . . . . . . . . . . . 93
9.19. Confidentiality . . . . . . . . . . . . . . . . . 93
9.20. Counterparts; Effectiveness . . . . . . . . . . . 93
SECTION 10. TRUSTEE . . . . . . . . 94
10.1. Appointment as Trustee. . . . . . . . . . . . . . 94
10.2. Limitation on Duties. . . . . . . . . . . . . . . 94
10.3. Limitation on Liabilities . . . . . . . . . . . . 94
10.4. Trustee s Action on Communications. . . . . . . .
94
10.5. Continental Bank Entitled to Act as Lender. . . .
95
10.6. Successor Trustee . . . . . . . . . . . . . . . . 95
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF REQUEST FOR LETTER
OF CREDIT
III FORM OF NOTICE OF
CONVERSION/CONTINUATION
IV FORM OF TERM NOTE
V FORM OF REVOLVING NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII FORM OF SUBSIDIARY GUARANTY
VIII FORM OF OPINION OF SKADDEN, ARPS,
SLATE, MEAGHER &
FLOM (COUNSEL TO COMPANY AND ITS
SUBSIDIARIES)
IX FORM OF OPINION OF O MELVENY &
MYERS
X FORM OF PLEDGE AGREEMENT
XI FORM OF BID RATE LOAN QUOTE REQUEST
XII FORM OF BID RATE LOAN QUOTE
XIII FORM OF INVITATION FOR BID RATE LOAN
QUOTES
XIV FORM OF ASSIGNMENT AND
ASSUMPTIONSCHEDULES
A EXISTING LETTERS OF CREDIT (Subsection
1.1)
B LENDERS; INITIAL REVOLVING LOAN and
TERM LOAN
COMMITMENTS; PRO RATA SHARES
(Subsection 1.1; Subsection
2.1.A)
C SUBSIDIARIES (Subsection 1.1; Subsection 4.1.C)
D CONFLICTS AND CONSENTS (Subsection 4.2)
E LIENS (Subsection 1.1)
F ERISA EVENTS (Subsection 4.11)
G ENVIRONMENTAL MATTERS (Subsection 4.13)
H EXISTING INDEBTEDNESS AND CREDIT
FACILITIES
(Subsection 1.1; Subsection 4.8; Subsection 6.1)
I CONTINGENT OBLIGATIONS (Subsection 1.1;
Subsection 6.1)
J RESTRICTIONS ON SUBSIDIARIES (Subsection
6.2)DANAHER CORPORATION
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of September 7,
1990 and entered into by and among DANAHER
CORPORATION, a Delaware corporation ( Company ), the
FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually
referred to herein as a Lender and collectively as Lenders
) and BANKERS TRUST COMPANY ( Bankers ) as agent
(in such capacity, Agent ).
RECITALS
WHEREAS, the parties hereto and WPI (such term and
other capitalized terms being used herein as defined in
Section 1 of the Agreement) have heretofore entered into
the Old Credit Agreement whereby lenders agreed to
extend and have extended certain credit facilities to
Company;
WHEREAS, the parties to the Old Credit Agreement
desire to terminate the Old Credit Agreement and
extinguish the commitments thereunder;
WHEREAS, Company desires that Lenders extend to
Company certain new credit facilities to (i) repay the loans
outstanding under the Old Credit Agreement, (ii) fund the
general corporate needs of Company and its Subsidiaries
and (iii) provide for the issuance of Letters of Credit to
support repayment obligations of Company and its
Subsidiaries;
WHEREAS, Company owns, directly or indirectly, all of
the issued and out- standing capital stock of the
Guarantors;
WHEREAS, Company desires to secure its Obligations to
Lenders under this Agreement by granting to Agent on
behalf of Lenders on the Closing Date a first priority
security interest in all of the capital stock of Easco pursuant
to the Pledge Agreement; and
WHEREAS, each of the Material Subsidiaries of Company
(other than Easco) desires to guaranty the Obligations of
Company under this Agreement by executing and
delivering on the Closing Date its Subsidiary Guaranty.
NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained,
Company, Lenders and Agent agree as follows:
SECTION 1.
DEFINITIONS
1.1. Certain Defined Terms
The following terms used in this Agreement shall have the
meanings indicated:
Additional Lender has the meaning assigned to that term
in subsection 2.11.
Adjusted Certificate of Deposit Rate means, for any
Interest Rate Determination Date, the sum (rounded upward
to the next highest one hundredth of one percent) of (i) the
rate obtained by dividing (x) the Certificate of Deposit Rate
for that day by (y) a percentage equal to 100% minus the
full reserve requirement percentage as specified by the
Board of Governors of the Federal Reserve System that
Bankers determines would be applicable on that day to a
certificate of deposit of Bankers in excess of $100,000 with
a maturity comparable to the Interest Period to which the
interest rate being determined will apply (including,
without limitation, any marginal, emergency, supplemental,
special or other reserves if Bankers determines that it is
required to maintain any such reserves on such day), plus
(ii) the then daily net annual assessment rate as estimated
by Agent for determining the current annual assessment
payable by Bankers to the Federal Deposit Insurance
Corporation for insuring certificates of deposit with a
maturity comparable to the Interest Period to which the
interest rate being determined will apply.
Adjusted Eurodollar Rate means, for any Interest Rate
Determination Date, the rate (rounded upward to the next
highest 1/100 of one percent) obtained by dividing (i) the
Eurodollar Rate for that date by (ii) a percentage equal to
100% minus the stated maximum rate of all reserves
required to be maintained against Eurocurrency liabilities
as specified in Regulation D (or against any other category
of liabilities which includes deposits by reference to which
the interest rate on Eurodollar Rate Loans is determined or
any category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender
to United States residents).
Adjusted Interest Coverage Ratio means, for any period,
the ratio of (i) Consolidated Adjusted EBDITA (less Net
Capital Expenditures made during the period of
determination) to (ii) Consolidated Net Interest Expense.
Adjusted Leverage Ratio means, for any date of
determination, the ratio of (i) Consolidated Total Debt and
Guarantees to (ii) Adjusted Tangible Net Worth.
Adjusted Tangible Net Worth means, as at any date of
determination, the sum of the capital stock (excluding any
capital stock of Company that, by its terms or by the terms
of any Securities into which it is convertible or
exchangeable, is or upon the happening of an event or the
passage of time would be, required to be repurchased,
including at the option of the holder, in whole or in part, or
have, or upon the happening of an event would have, a
redemption or similar payment due) and additional paid-in
capital plus retained earnings (or minus accumulated
deficit) of Company and its Subsidiaries on a consolidated
basis, minus intangible assets (including, without
limitation, all write-ups (other than write-ups resulting from
foreign currency transactions)) subsequent to the Closing
Date in the book value of any asset owned by such Person
or consolidated Subsidiary of such Person, unamortized
deferred charges, unamortized debt discount and expense,
franchises, patents, patent applications, licenses, trade
marks, service marks, trade names and brand names (but
not goodwill associated with acquisitions made by
Company or any of its Subsidiaries of operating businesses
or operating assets, which shall be included in Adjusted
Tangible Net Worth).
Affected Lender has the meaning assigned to that term in
subsection 2.8.A.(ii).
Affected Loan has the meaning assigned that term in
subsection 2.8.A.(ii).
Affiliate , as applied to any Person, means any other
Person directly or indirectly controlling, controlled by, or
under common control with, that Person. For the purposes
of this definition, control (including with correlative
meanings, the terms controlling , controlled by and under
common control with ), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of that
Person, whether through the ownership of voting securities
or by contract or otherwise.
Agent means Bankers, in its capacity as Agent hereunder
and under the other Loan Documents.
Agreement means this Credit Agreement dated as of
September 7, 1990, as it may be amended, supplemented or
otherwise modified from time to time.
Aggregate Amounts Due has the meaning assigned to that
term in subsection 9.5.
Aggregate Excess Proceeds means all amounts received
by Company or any of its Subsidiaries from and after the
Closing Date in respect of Cash Proceeds of Asset Sales,
Condemnation Proceeds and Insurance Proceeds (other than
(i) amounts received pursuant to Receivables Purchase
Agreement dated as of September 30, 1988 between the
Jacobs Manufacturing Company and Continental Bank, as
amended, and (ii) any residual interest in the securities
issued by Allied Steel & Tractor Products, Inc. or its parent
corporation) that exceed, in the aggregate, an amount equal
to the difference between $50,000,000 and the fair market
value of all assets distributed to Company s shareholders
pursuant to subsection 6.6.E.
Applicable Base Rate Pricing Margin shall mean zero;
provided that, upon notice to Company by Agent of the
commencement of an HLT Classification Period, the
Applicable Base Rate Pricing Margin shall become and
remain 1.00% per annum for so long as such HLT
Classification Period continues.
Applicable CD Rate Pricing Margin means: during any
Pricing Period for which Company s Pricing Level is
Pricing Level I, 0.4375% per annum; during any Pricing
Period for which Company s Pricing Level is Pricing Level
II, 0.500% per annum; and during any Pricing Period for
which Company s Pricing Level is Pricing Level III,
0.8750% per annum; provided that, upon notice to
Company by Agent of the commencement of an HLT
Classification Period, the Applicable CD Rate Pricing
Margin shall become and remain 2.00% per annum for so
long as such HLT Classification Period continues.
Applicable Commitment Fee Percentage means: during
any Pricing Period for which Company s Pricing Level is
Pricing Level I, 0.10% per annum; during any Pricing
Period for which Company s Pricing Level is Pricing Level
II, 0.10% per annum; and during any Pricing Period for
which Company s Pricing Level is Pricing Level III, 0.25%
per annum; provided that, upon notice to Company by
Agent of the commencement of an HLT Classification
Period, the Applicable Commitment Fee Percentage shall
become and remain 0.40% per annum for so long as such
HLT Classification Period continues.
Applicable Eurodollar Rate Pricing Margin means: during
any Pricing Period for which Company s Pricing Level is
Pricing Level I, 0.3125% per annum; during any Pricing
Period for which Company s Pricing Level is Pricing Level
II, 0.4375% per annum; and during any Pricing Period for
which Company s Pricing Level is Pricing Level III,
0.7500% per annum; provided that, upon notice to
Company by Agent of the commencement of an HLT
Classification Period, the Applicable Eurodollar Rate
Pricing Margin shall become and remain 2.00% per annum
for so long as such HLT Classification Period continues.
Applicable Facility Fee Percentage means: during any
Pricing Period for which Company s Pricing Level is
Pricing Level I, 0.100% per annum; during any Pricing
Period for which Company s Pricing Level is Pricing Level
II, 0.100% per annum; and during any Pricing Period for
which Company s Pricing Level is Pricing Level III,
0.125% per annum.
Applicable Letter of Credit Fee Percentage means: during
any Pricing Period for which Company s Pricing Level is
Pricing Level I, 0.50% per annum; during any Pricing
Period for which Company s Pricing Level is Pricing Level
II, 0.50% per annum; and during any Pricing Period for
which Company s Pricing Level is Pricing Level III, 0.75%
per annum; provided that, upon notice to Company by
Agent of the commencement of an HLT Classification
Period, the Applicable Letter of Credit Fee Percentage shall
become and remain 2.00% per annum for so long as such
HLT Classification Period continues.
Asset Sale means the sale by Company or any of its
Subsidiaries to any Person other than Company or any of
its wholly-owned Subsidiaries of (i) any of the stock of any
of Company s Subsidiaries; (ii) substantially all of the
assets of any division or line of business of Company or
any of its Subsidiaries; or (iii) any other assets (including,
without limitation, any assets that do not constitute
substantially all of the assets of any division or line of
business of Company or any of its Subsidiaries), which in
the case of clause (i), (ii) or (iii) above individually has a
Fair Market Value in excess of $250,000 (it being
understood that if the Fair Market Value thereof exceeds
$250,000, the entire value and not just the portion in excess
of $250,000 shall be subject to subsection 2.6.B.(i)(a)),
other than (a) the sale in the ordinary course of business of
personal property held for resale in the ordinary course of
business of Company or any of its Subsidiaries and (b)
sales of obsolete or worn out property to the extent the
proceeds of such sales are applied to the purchase of
replacement assets of the same or similar type that are
purchased, ordered or contracted for within six months of
the date of such sale.
Bankers has the meaning assigned to that term in the
introduction to this Agreement.
Bankruptcy Code means Title 11 of the United States
Code entitled Bankruptcy as now and hereafter in effect,
or any successor statute.
Base Rate means, at any time, the highest of (x) the Prime
Rate and (y) the rate that is one half of one percent in
excess of the Federal Funds Effective Rate.
Base Rate Loans means Loans made by Lenders pursuant
to subsections 2.1.A, 2.1.B and 2.2.A and bearing interest
at rates determined by reference to the Base Rate as
provided in subsection 2.3.A.
Benefitted Subsidiary means, with respect to any Letter
of Credit, the Person for whose benefit such Letter of
Credit was issued, which shall be either Company or one of
its Subsidiaries, as specified by Company in the request for
issuance of such Letter of Credit made pursuant to
subsection 2.4.B.
Bid Rate Loan Agent means either (i) if Company has
appointed Continental Bank to act as Bid Rate Loan Agent
hereunder and Continental Bank has accepted such
appointment, for so long as Continental Bank is acting as
Bid Rate Loan Agent hereunder, Continental Bank in its
capacity as Bid Rate Loan Agent hereunder, or (ii) so long
as Company elects to act as Bid Rate Loan Agent
hereunder, Company in its capacity as Bid Rate Loan
Agent; provided that the provisions of Section 8 shall not
apply to the rights and duties of Company acting as Bid
Rate Loan Agent. Anything contained herein to the
contrary notwithstanding, Continental Bank shall have no
rights, duties or obligations in the capacity of Bid Rate
Loan Agent hereunder until such time as it may be
appointed to act as Bid Rate Loan Agent pursuant to and in
accordance with the terms of Section 8.
Bid Rate Loans means Loans made by one or more
Lenders to Company pursuant to subsection 2.1.E.
Bid Rate Loan Interest Payment Date means, with respect
to any Bid Rate Loan, the last day of the Bid Rate Loan
Interest Period applicable to such Bid Rate Loan.
Bid Rate Loan Interest Period means, with respect to any
Bid Rate Loans, the period commencing on the date such
Bid Rate Loans are made and ending on any date not less
than 7 and not more than 180 days thereafter, as Company
may select pursuant to subsection 2.1.E.(ii).
Notwithstanding the foregoing, (i) if any Bid Rate Loan
Interest Period would otherwise end after the Term Loan
Funding Date, such Bid Rate Loan Interest Period shall end
on the Term Loan Funding Date, (ii) each Bid Rate Loan
Interest Period which would otherwise end on a day which
is not a Business Day shall end on the next succeeding
Business Day and (iii) subject to clause (ii) above and
notwithstanding clause (i) above, no Bid Rate Loan Interest
Period for any Bid Rate Loans shall have a duration of less
than 7 days or greater than 180 days and, if the Bid Rate
Loan Interest Period for any Bid Rate Loans would
otherwise be a shorter or longer period, such Bid Rate
Loans shall not be available hereunder.
Bid Rate Loan Quote means an offer by a Lender to make
Bid Rate Loans, substantially in the form of Exhibit XII
annexed hereto, delivered to Trustee by such Lender
pursuant to subsection 2.1.E.
Bid Rate Loan Quote Request means a request by
Company to each Lender to submit Bid Rate Loan Quotes,
substantially in the form of Exhibit XI annexed hereto,
delivered by Company to Trustee pursuant to subsection
2.1.E.
Bid Rate Loan Shortfall Amount means the amount, if
any, by which the amount of Bid Rate Loans requested in a
Bid Rate Loan Quote Request exceeds the amount equal to
(i) the aggregate amount of Bid Rate Loans offered in any
Bid Rate Loan Quotes delivered by Lenders relating to such
Bid Rate Loan Quote Request minus (ii) the amount of Bid
Rate Loans so offered which are rejected in good faith by
Company.
Bid Rate Loan Shortfall Date means a proposed Funding
Date of Bid Rate Loans in respect of which a Bid Rate
Loan Shortfall Amount exists.
Bid Rate Register has the meaning assigned thereto in
subsection 2.1.E. (xii).
Business Day means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday,
Sunday and any day that is a legal holiday under the laws
of the State of New York or, with respect to Bid Rate
Loans, the State of Illinois, or is a day on which banking
institutions located in either such state are authorized or
required by law or other governmental action to close, and
(ii) with respect to all notices, determinations, fundings and
payments in connection with Eurodollar Rate Loans, any
day that is a Business Day described in clause (i) and that is
also a day for trading by and between banks in Dollar
deposits in the applicable interbank Eurodollar market.
Capital Expenditure Credit means, as at the end of any
fiscal quarter of Company, twenty-five percent of the
Capital Expenditure Cushion calculated as at the most
recent Cushion Determination Date, plus the unused
portion, if any, of the Capital Expenditure Credits
attributable to the preceding fiscal quarters of Company
occurring since the immediately preceding Cushion
Determination Date; provided that, the Capital Expenditure
Credit for any fiscal quarter shall not exceed the amount by
which Consolidated Capital Expenditures made during the
four fiscal quarter period ending at the end of the fiscal
quarter as at the end of which such determination is being
made, exceeded total depreciation of Company and its
Subsidiaries for such four fiscal quarter period; provided
further that the Capital Expenditure Credit for any fiscal
quarter of Company occurring during 1990 shall be zero.
Capital Expenditure Cushion means, for the most recent
Cushion Determination Date, the amount by which
Consolidated Adjusted EBDITA minus Net Capital
Expenditures for the fiscal year ending on such Cushion
Determination Date exceeded three times the Consolidated
Net Interest Expense for such period.
Capital Lease , as applied to any Person, means any lease
of any property (whether real, personal or mixed) by that
Person as lessee that, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that
Person.
Cash means money, currency or a credit balance in a
Deposit Account.
Cash Equivalents means (i) marketable direct obligations
issued or unconditionally guaranteed by the United States
government or issued by any agency thereof and backed by
the full faith and credit of the United States of America, in
each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued
by any state of the United States of America or any political
subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having a
rating not less than one full grade below the highest rating
obtainable from either Standard & Poor s Corporation or
Moody s Investors Service, Inc.; (iii) commercial paper
maturing no more than nine months from the date of
creation thereof and, at the time of acquisition, having a
rating of at least A-2 from Standard & Poor s Corporation
or at least P-2 from Moody s Investors Service, Inc. or any
money-market type obligation of an issuer the commercial
paper of which has such a rating, which obligation matures
no later than one year from the date of creation thereof; (iv)
certificates of deposit (whether or not Eurodollar in nature)
or bankers acceptances maturing within one year from the
date of acquisition thereof issued by any Lender or any
commercial bank organized under the laws of the United
States of America or any state thereof or the District of
Columbia or any foreign country having combined capital
and surplus of not less than $250,000,000 (each such
commercial bank herein called a Cash Equivalent Bank );
(v) Eurodollar time deposits having a maturity of less than
one year purchased directly from any Cash Equivalent
Bank (whether such deposit is with such Cash Equivalent
Bank or any other Cash Equivalent Bank); and (vi)
repurchase agreements and reverse repurchase agreements
with any Lender relating to marketable direct obligations
issued or unconditionally guaranteed by the United States
government or issued by any agency thereof and backed by
the full faith and credit of the United States, in each case
maturing within one year from the date of acquisition
thereof; provided that the terms of such agreements comply
with the guidelines set forth in the Federal Financial
Institutions Examination Council Supervisory Policy --
Repurchase Agreements of Depository Institutions with
Securities, Dealers and Others, as adopted by the
Comptroller of the Currency on October 31, 1985 (the
Supervisory Policy ).
Cash Proceeds means, with respect to any Asset Sale,
cash payments (including any cash received by way of
deferred payment pursuant to, or monetization of, a note
receivable or otherwise (other than the portion of such
deferred payment constituting interest), but only as and
when so received) received from such Asset Sale.
CD Rate Loans means Loans bearing interest at rates
determined by reference to the Adjusted Certificate of
Deposit Rate as provided in subsection 2.3.A.
Certificate of Deposit Rate means, for any Interest Rate
Determination Date, the arithmetic average (rounded
upward to the nearest one hundredth of one percent) of the
consensus bid rates determined by each Reference Lender
as of approximately 10:00 A.M. (New York time) on that
date of two or more New York certificate of deposit dealers
of recognized standing selected by such Reference Lender
for the purchase at face value from such Reference Lender
in New York of certificates of deposit in amounts
comparable to the outstanding principal amount of the CD
Rate Loans of such Reference Lender for which the
Adjusted Certificate of Deposit Rate is then being
determined with maturities comparable to the Interest
Period to which the Adjusted Certificate of Deposit Rate
being determined will apply. If any Reference Lender fails
to provide its bid rate to Agent, the Certificate of Deposit
Rate shall be determined on the basis of the bid rate of the
other Reference Lender.
Change of Control Event means such time as a Schedule
13D has been filed, or should have been filed, with respect
to a Person or group (as defined in the rules (the Rules )
promulgated under Section 13 of the Exchange Act) which
Person or group, as the case may be, owns beneficially (as
such term is defined in the Rules) or of record at such time
a greater number of shares of Company Common Stock
than does Steven M. Rates and Mitchell P. Rales
collectively.
Closing Date means the date on or before September 30,
1990, on which the initial Loans are made.
Commercial Paper means a short-term instrument issued
by Company evidencing Indebtedness commonly known as
commercial paper, with a maximum maturity of 270 days
from the date of issuance thereof.
Commitment Letter means the letter agreement dated
August 24, 1990 by and between Company and Bankers.
Commitment Termination Date means the earliest of (i)
the fifth anniversary of the Closing Date, (ii) if earlier than
the Term Loan Funding Date, the date on which all
Revolving Loans, Swingline Loans and Bid Rate Loans are
paid in full and the Revolving Loan Commitments are
reduced to zero, and (iii) the date on which all Term Loans
are paid in full.
Commitments means the commitments of Lenders to
make Loans as set forth in subsections 2.1 and 2.2.
Company has the meaning given that term in the
introduction to this Agreement.
Company Common Stock means the common stock of
Company, par value $.01 per share.
Compliance Certificate means a certificate substantially
in the form annexed hereto as Exhibit VI delivered to
Lenders by Company pursuant to subsection 5.1.C.
Condemnation Proceeds means any cash payments in
respect of compensa- tion, awards, damages, rights of
action (including, without limitation, causes of action
arising in tort or contract and causes of action for fraud or
concealment of a material fact) and proceeds awarded to
Company or any of its Subsidiaries by reason of any such
taking or damage that have not been reinvested in
Productive Assets.
Consolidated Adjusted EBDITA means, for any period,
the sum of the amounts for such period of (i) Consolidated
Net Income, (ii) provisions for taxes based on income and
intercompany dividends and transfers, (iii) Consolidated
Net Interest Expense, (iv) total depreciation expense, (v)
total amortization expense, and (vi) other unusual and
nonrecurring non-cash items reducing Consolidated Net
Income less other unusual and nonrecurring non-cash items
increasing Consolidated Net Income, all of the foregoing as
determined on a consolidated basis for Company and its
Subsidiaries in conformity with GAAP.
Consolidated Capital Expenditures means, for any period,
the aggregate of all expenditures (whether paid in cash or
accrued as a liability and including that portion of Capital
Leases which is capitalized on the consolidated balance
sheet of Company and its Subsidiaries) by Company and its
Subsidiaries during that period that, in conformity with
GAAP, are included in additions to property, plant or
equipment or comparable items reflected in the
consolidated statements of cash flows of Company and its
Subsidiaries.
Consolidated Current Assets means, as at any date of
determination, the sum of (x) the total assets of Company
and its Subsidiaries on a consolidated basis that properly
may be classified as current assets in conformity with
GAAP, with most domestic inventories calculated on a
LIFO basis, plus (y) during the Revolving Period, the
unutilized Revolving Loan Commitments.
Consolidated Current Liabilities means, as at any date of
determination, the total liabilities of Company and its
Subsidiaries on a consolidated basis that properly may be
classified as current liabilities in conformity with GAAP,
provided that the Current Maturities of the Term Loans, the
Revolving Loans, the Swingline Loans, and the Bid Rate
Loans which are classified as a current liability in
conformity with GAAP shall be excluded from the
definition of Consolidated Current Liabilities.
Consolidated Net Income means, for any period, the net
income (or loss) of Company and its Subsidiaries on a
consolidated basis for such period taken as a single
accounting period in conformity with GAAP; provided that
there shall be excluded (i) the income (or loss) of any
Person (other than a Subsidiary of Company) in which any
other Person (other than Company or any of its
Subsidiaries) has a joint interest (except for Joint Ventures
in which Company or any of its Subsidiaries has effective
managerial control of the operations of such Joint Venture
and has the ability to cause such Joint Venture to become a
Subsidiary of Company by Company or such Subsidiary
exercising an option that is subject to no contingency
outside the exclusive control of Company and its
Subsidiaries), except to the extent of the amount of
dividends or other distributions actually paid to Company
or any of its Subsidiaries by such Person during such
period, (ii) the income (or loss) of any Person accrued prior
to the date it becomes a Subsidiary of Company or is
merged into or consolidated with Company or any of its
Subsidiaries or that Person s assets are acquired by
Company or any of its Subsidiaries, (iii) the income of any
Subsidiary of Company to the extent that the declaration or
payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (iv)
any after-tax gains or losses attributable to Asset Sales or
returned surplus assets of any Pension Plan and (v) without
duplication, any extraordinary gain or loss for such period
determined in conformity with GAAP, and, in addition,
shall include, without limitation, gains or losses resulting
from the sale, conversion or other disposition of
Investments and other material assets of Company and its
Subsidiaries other than in the ordinary course of business,
or from the repayment of Indebtedness.
Consolidated Net Interest Expense means, for any
twelve-month period, total interest expense (net of interest
income) of Company and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of
Company and its Subsidiaries, including, without
limitation, all capitalized interest, all commissions,
discounts and other fees and charges owed with respect to
letters of credit and bankers acceptance financing and net
costs under Interest Rate Agreements, determined in
conformity with GAAP.
Consolidated Total Debt means, as at any date of
determination, the aggregate stated balance sheet amount of
all Indebtedness (including, without limitation, the Loans)
of Company and its Subsidiaries, determined on a
consolidated basis in conformity with GAAP.
Consolidated Total Debt and Guarantees means
Consolidated Total Debt plus the aggregate amount of the
Contingent Obligations of Company and its Subsidiaries,
other than the Subsidiary Guaranties and those certain
Contingent Obligations set forth on Schedule I annexed
hereto that are specifically excluded from the calculation of
the Adjusted Leverage Ratio.
Continental Bank means Continental Bank, National
Association.
Contingent Obligation , as applied to any Person, means
any direct or indirect liability, contingent or otherwise, of
that Person (i) with respect to any indebtedness, lease,
dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the
obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of
such obligation will be protected (in whole or in part)
against loss in respect thereof and (ii) with respect to any
letter of credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of
drawings thereunder. Contingent Obligations shall include,
without limitation, (a) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the
ordinary course of business), co- making, discounting with
recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an
agreement, and (c) any liability of such Person for the
obligations of another through any agreement (contingent
or otherwise) (x) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (y) to
maintain the solvency or any balance sheet item, level of
income or financial condition of another, if in the case of
any agreement described under subclauses (x) or (y) of this
sentence, the primary purpose or intent thereof is as
described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the
obligation so guaranteed or otherwise supported.
Contractual Obligation , as applied to any Person, means
any provision of any security issued by that Person or of
any indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which that
Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject.
Credit Party means each of Company, all of the
Guarantors and, for so long as the Pledge Agreement is in
effect, Easco; and Credit Parties means all such Persons
collectively.
Current Maturities means, as applied to any Person as at
any date of determination, all payments of principal due
under the terms of any Indebtedness of such Person within
twelve calendar months after that date.
Cushion Determination Date means the last day of the
most recently ended fiscal year of Company.
Date of Determination means, for purposes of
determining the applicable Pricing Level on any Pricing
Level Calculation Date, the last day of the most recently
ended fiscal quarter of Company.
Deposit Account means a demand, time, savings,
passbook or like account with a bank, savings and loan
association, credit union or like organization, other than an
account evidenced by a negotiable certificate of deposit.
Dollars and the sign $ means the lawful money of the
United States of America.
Easco means Easco Hand Tools, Inc., a Delaware
corporation and a wholly owned Subsidiary of Company.
Easco Debt means the 12-7/8% Senior Subordinated
Notes due September 1, 1998 of Easco in the form issued
pursuant to that certain Indenture dated September 1, 1988
by and between Easco and Maryland National Bank, as
Trustee, as in effect on the Closing Date.
Employee Benefit Plan means any employee benefit plan
within the meaning of Section 3(3) of ERISA, other than a
Multi employer Plan, which is maintained for employees of
Company or any of its ERISA Affiliates.
Environmental Claim means any notice of violation,
claim, demand, abatement order or other order by any
governmental authority or any Person for any damage,
including, without limitation, personal injury (including
sickness, disease or death), tangible or intangible property
damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution,
contamination or other adverse effects on the environment,
or for fines, penalties or restrictions, resulting from or
based upon (i) the existence of a Release (whether sudden
or non- sudden or accidental or non-accidental) of, or
exposure to, any Hazardous Material in, into or onto the
environment at, in, by, from or related to any Facility, (ii)
the use, handling, transportation, storage, treatment or
disposal of Hazardous Materials in connection with the
operation of any Facility, or (iii) the violation, or alleged
violation, of any statutes, ordinances, orders, rules,
regulations, permits, licenses or authorizations of or from
any governmental authority, agency or court relating to
environmental matters connected with the Facilities.
Environmental Laws means all laws relating to
environmental matters, including, without limitation, those
relating to (i) fines, orders, injunctions, penalties, damages,
contribution, cost recovery compensation, losses or injuries
resulting from the Release or threatened Release of
Hazardous Materials and to the generation, use, storage,
transportation, or disposal of Hazardous Materials, in any
manner applicable to Company or any of its Subsidiaries or
any or their respective properties, including, without
limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et
seq.), the Hazardous Material Transportation Act (49
U.S.C. Section 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean
Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. Section 2601 et seq.), the Occupational
Safety and Health Act (29 U.S.C. Section 651 et seq.) and the
Emergency Planning and Community Right-to-Know Act
(42 U.S.C. Section 11001 et seq.) and (ii) environmental
protection, including, without limitation, the National
Environmental Policy Act (42 U.S.C. Section 4321 et seq.) and
comparable state laws, each as amended or supplemented,
and any similar or analogous local, state and federal
statutes and regulations promulgated pursuant thereto, each
as in effect as of the date of determination.
ERISA means the Employee Retirement Income Security
Act of 1974, as amended from time to time and any
successor statute.
ERISA Affiliate means Company and (i) any corporation
that is a member of a controlled group of corporations
within the meaning of Section 414(b) of the Internal
Revenue Code of which Company is a member; (ii) any
trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common
control within the meaning of Section 414(c) of the Internal
Revenue Code of which Company is a member; and (iii)
any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue
Code of which Company, any corporation described in
clause (i) above or any trade or business described in clause
(ii) above is a member.
ERISA Event means (i) the occurrence of a reportable
event within the meaning of Section 4043 of ERISA (other
than a reportable event as to which the requirement for
thirty-day notice to the PBGC has been waived) with
respect to any Pension Plan, (ii) failure with respect to any
Pension Plan to meet the minimum funding standard of
Section 412 of the Internal Revenue Code or of Section 302
of ERISA, including, without limitation, the failure to make
on or before its due date a required installment under
Section 412(m) of the Internal Revenue Code or Section
302(e) of ERISA; (iii) the provision by the administrator of
any Pension Plan of a notice of intent to terminate such
plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA) if such termination would
result in liability that would constitute a Material Adverse
Effect; (iv) the withdrawal by Company or any ERISA
Affiliate from a Pension Plan during a plan year for which
it was a substantial employer within the meaning of
Section 4001(a)(2) of ERISA resulting in liability of any
such entity pursuant to Section 4062(e) or 4063 or ERISA
which constitutes a Material Adverse Effect; (v) the
institution by the PBGC of proceedings to terminate a
Pension Plan, or for the appointment of a trustee to
administer a Pension Plan, pursuant to Section 4042 of
ERISA; (vi) the withdrawal by Company or any ERISA
Affiliate in a complete or partial withdrawal from a
Multiemployer Plan, or the receipt by Company or any
ERISA Affiliate of notice from a Multi employer Plan that
it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA or that it intends to terminate or
has terminated under Section 4041A of ERISA where any
such event results in liability which constitutes a Material
Adverse Effect; (vii) the imposition on Company or any
ERISA Affiliate of fines, penalties, taxes or related charges
under Chapter 43 of the Internal Revenue Code or under
Sections 502(c), (i) or (l) or 4071 of ERISA where liability
for such charges constitutes a Material Adverse Effect;
(viii) the assertion of a material claim (other than routine
claims for benefits) against any Employee Benefit Plan or
the assets thereof, or against Company or any ERISA
Affiliate in connection with any such plan where liability
for such claim would constitute a Material Adverse Effect;
(ix) the existence, as of any valuation date for a Pension
Plan, of an excess of the present value (determined on the
basis of reasonable assumptions used by the independent
actuary for such Pension Plan) of the accrued benefits
(whether or not vested) of the participants and beneficiaries
of such Pension Plan over the fair market value of the
assets of such Pension Plan, if such excess, when added to
the excesses calculated in the same manner for each of the
other Pension Plans as of the most recently preceding
valuation date for each such other Pension Plan, exceeds
$20,000,000; or (x) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan to
qualify under Section 401(a) of the Internal Revenue Code,
or the failure of any trust forming part of a Pension Plan to
fail to qualify for exemption from taxation under Section
501(a) of the Internal Revenue Code.
Eurodollar Rate means, for any Interest Rate
Determination Date, the arithmetic average (rounded
upwards to the nearest 1/16 of 1%) of the offered quotation,
if any, to first class banks in the Eurodollar market by each
of the Reference Lenders for Dollar deposits of amounts in
immediately available funds comparable to the principal
amount of the Eurodollar Rate Loan of the Reference
Lender for which the Eurodollar Rate is being determined
with maturities comparable to the Interest Period for which
such Eurodollar Rate will apply as of approximately 10:00
A.M. (New York time) two Business Days prior to the
commencement of such Interest Period. If any Reference
Lender fails to provide its offered quotation to Agent, the
Eurodollar Rate shall be determined on the basis of the
offered quotation of the other Reference Lender.
Eurodollar Rate Loans means Loans bearing interest at
rates determined by reference to the Adjusted Eurodollar
Rate as provided in subsection 2.3.A.
Event of Default means each of the events set forth in
Section 7.
Excess Investments in Securities means, as at any date of
determination, the amount by which the aggregate
Investments of Company and its Subsidiaries in Marketable
Securities and Non-Marketable Securities exceeds the
amount of such Investments permitted by subsection 6.3.B
hereof.
Exchange Act means the Securities Exchange Act of
1934, as amended from time to time, and any successor
statute.
Exchange Rate means, on any date, when an amount
expressed in a currency other than Dollars is to be
determined with respect to any Letter of Credit, the
nominal rate of exchange of the applicable Issuing Lender
in the New York foreign exchange market for the purchase
by such Issuing Lender (by cable transfer) of such currency
in exchange for Dollars at 12:00 noon (New York City
time), one Business Day prior to such date, expressed as the
number of units of such currency per $1.00.
Existing Indebtedness means Indebtedness of Company
and its Subsidiaries existing on the Closing Date and listed
in Schedule H annexed hereto.
Existing Letters of Credit means each of the Letters of
Credit issued pursuant to the Old Credit Agreement and
outstanding on the Closing Date naming Company as
account party that is listed on Schedule A annexed hereto.
Facilities means any and all real property (including,
without limitation, all buildings, fixtures or other
improvements located thereon) now, or heretofore, owned,
leased, operated or used (under permit or otherwise) by
Company or any of its Subsidiaries or any of their
respective predecessors.
Fair Market Value means, with respect to any asset sale,
the price that would be paid by a willing buyer to a willing
seller in a transaction effected at arms length.
Federal Funds Effective Rate means for any period, a
fluctuating interest rate equal for each day during such
period to the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by Agent from three federal funds brokers of recognized
standing selected by Agent.
Financial Statements means the audited financial
statements, and the notes attached thereto, of Company and
its Subsidiaries prepared on a consolidated basis for the
fiscal year ending December 31, 1989, as delivered to
Agent and Lenders prior to the date of execution of this
Agreement.
First Chicago means The First National Bank of Chicago.
Funding Date means the date of the funding of a Loan or
the date of the issuance of a Letter of Credit, as applicable.
GAAP means generally accepted accounting principles
set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as
may be approved by a significant segment of the
accounting profession, that are applicable to the
circumstances as of the date of determination.
Guarantor means each Material Subsidiary, other than, for
so long as the Easco Debt is outstanding, Easco.
Guaranty means any of the Subsidiary Guaranties, and
Guaranties means all such guaranties, collectively.
Hazardous Materials means (i) any chemical, material or
substance defined as or included in the definition of
hazardous substances, hazardous wastes, hazardous
materials, extremely hazardous waste, restricted
hazardous waste, or toxic substances or words of similar
import under any applicable Environmental Laws; (ii) any
oil, petroleum or petroleum derived substance, any drilling
fluids, produced waters and other wastes associated with
the exploration, development or production of crude oil,
any flammable substances or explosives, any radioactive
materials, any hazardous wastes or substances, any toxic
wastes or substances or any other materials or pollutants
that (a) pose a hazard to any property of Company or any of
its Subsidiaries or to Persons on or about such property or
(b) cause such property to be in violation of any
Environmental Laws; (iii) friable asbestos, urea
formaldehyde foam insulation, electrical equipment which
contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per
million; and (iv) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any
governmental authority.
HLT Classification Date means any date on which Agent
determines, or is advised by any Lender that such Lender
has received notice from any Regulatory Authority to the
effect, that the Loans or Commitments hereunder should be
or are classified as a highly leveraged transaction pursuant
to any objective criteria included in guidelines established
by any Regulatory Authority (whether or not having the
force of law and including without limitation those
announced or published prior to the date of this
Agreement).
HLT Classification Period means any period commencing
on an HLT Classification Date and ending on the day that
Agent first determines that the Loans or Commitments
previously classified as a highly leveraged transaction by
any Regulatory Authority, or that previously should have
been classified as a highly leveraged transaction , no
longer is or should be so classified.
Indebtedness , as applied to any Person, means, without
duplication (i) all indebtedness for borrowed money, (ii)
that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) notes payable and drafts
accepted representing extensions of credit whether or not
representing obligations for borrowed money, (iv) any
obligation owed for all or any part of the deferred purchase
price of property or services (excluding any such
obligations incurred with respect to any Employee Benefit
Plan) which purchase price is (a) due more than six months
from the date of incurrence of the obligation in respect
thereof, or (b) evidenced by a note or similar written
instrument, and (v) all indebtedness secured by any Lien on
any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby
shall have been assumed by that Person or is nonrecourse to
the credit of that Person; provided, however, Indebtedness
shall not include obligations incurred in the ordinary course
of business with respect to the deferred purchase price of
property that are (x) noninterest-bearing, (y) not evidenced
by a note or similar written instrument and (z) mature no
more than nine months from the date of incurrence of the
obligation in respect thereof.
Indemnitee has the meaning assigned to that term in
subsection 9.3.
Insurance Proceeds means any cash payments received by
Company or any of its Subsidiaries under any of the
insurance policies maintained pursuant to subsection 5.4
that have not been reinvested in Productive Assets.
Interest Payment Date means, with respect to any CD
Rate Loan or Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan; provided that in the
case of each Interest Period of longer than ninety days in
respect of a CD Rate Loan or three months in respect of a
Eurodollar Rate Loan, Interest Payment Date shall also
include each Interim Payment Date for such Interest
Period.
Interest Period means any interest period applicable to a
Loan as determined pursuant to subsection 2.3.B.
Interest Rate Agreement means any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement or arrangement
designed to protect Company or any of its Subsidiaries
against fluctuations in interest rates; provided that the
calculation of payments for early termination shall be made
on a reasonable basis in accordance with customary
industry practices; provided further that all such obligations
with respect to payments for early termination (guaranteed
or unguaranteed) as may have been incurred shall constitute
Indebtedness.
Interest Rate Determination Date means each date for
calculating the Eurodollar Rate or Certificate of Deposit
Rate, as the case may be, for purposes of determining the
interest rate in respect of an Interest Period. The Interest
Rate Determination Date shall be the second Business Day
prior to the first day of the related Interest Period for any
Eurodollar Rate Loan and the first day of the related
Interest Period for a CD Rate Loan.
Interim Payment Date means, (x) for each Interest Period
applicable to a CD Rate Loan that is longer than ninety
days, the date that is ninety days after the commencement
of that Interest Period and each date that is ninety days after
an Interim Payment Date and (y) for each Interest Period
applicable to a Eurodollar Rate Loan that is longer than
three months, the date that is three months after the
commencement of that Interest Period and each date that is
three months after an Interim Payment Date.
Internal Revenue Code means the Internal Revenue Code
of 1986, as amended to the date hereof and from time to
time hereafter.
Investment , as applied to any Person, means (i) any direct
or indirect purchase or other acquisition by that Person of,
or a beneficial interest in, stock or other Securities of any
other Person other than a Subsidiary, or (ii) any direct or
indirect loan, advance (other than advances to employees
for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of
business) or capital contribution by that Person to any other
Person other than a Subsidiary, including all indebtedness
and accounts receivable from that other Person that are not
current assets or did not arise from sales to that other
Person in the ordinary course of business. The amount of
any Investment shall be the original cost of such Investment
plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such
Investment.
Invitation for Bid Rate Loan Quotes means an invitation
to each Lender to submit a Bid Rate Loan Quote,
substantially in the form of Exhibit XIII annexed hereto,
delivered by Bid Rate Loan Agent to such Lender pursuant
to subsection 2.1.E with respect to a Bid Rate Loan Quote
Request.
Issuing Lender means, with respect to any Letter of
Credit, the Lender that agrees or is otherwise obligated to
issue such Letter of Credit, determined as provided in
subsection 2.4.B.
Joint Venture means a joint venture, partnership or other
similar arrange- ment, whether in corporate, partnership or
other legal form; provided that, as to any such arrangement
in corporate form, such corporation shall not, as to any
Person of which such corporation is a Subsidiary, be
considered to be a Joint Venture to which such Person is a
party.
Lender and Lenders means the persons identified as
Lenders and listed on the signature pages of this
Agreement and Additional Lender, together with their
successors and permitted assigns pursuant to subsection
9.1; provided that the term Lenders when used in the
context of a particular Commitment, shall mean those
Lenders having that Commitment.
Letter of Credit Commitment means the commitment of
Issuing Lenders to issue Letters of Credit as set forth in
subsection 2.4.A.
Letter of Credit Usage means, as at any date of
determination, with respect to all outstanding Letters of
Credit, the sum of (i) the maximum aggregate amount
which is or at any time thereafter may become available for
drawing under such Letters of Credit plus (ii) the aggregate
amount of all drawings under such Letters of Credit
honored by Issuing Lenders and not theretofore reimbursed
by Company; provided, however, the Letter of Credit
Usage of an Issuing Lender shall be deemed to be only such
portion of the Letter of Credit Usage of such Issuing
Lender which Lenders have not bought by participation
pursuant to subsection 2.4.A. For purposes of this
definition, any amount described hereunder which is
denominated in a currency other than Dollars shall be
valued based on the applicable Exchange Rate for such
currency as of such date of determination.
Letters of Credit means the Existing Letters of Credit and
the standby letters of credit or similar instruments issued
pursuant to subsection 2.4 for the purpose of supporting (i)
workers compensation liabilities of Company or any of its
Subsidiaries, (ii) the obligations of third party insurers of
Company or any of its Subsidiaries arising by virtue of the
laws of any jurisdiction requiring third party insurers to
obtain such letters of credit, (iii) Indebtedness of Company
or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (iv) obligations with
respect to Capital Leases or Operating Leases of Company
or any of its Subsidiaries, (v) per- formance, payment,
deposit or surety obligations of Company or any of its
Subsidiaries, in any case if required by law or
governmental rule or regulation or in accordance with
custom and practice in the industry, or (vi) obligations of
Company or any of its Subsidiaries in respect of payment
of customary indemnification and purchase price
adjustment obligations incurred in connection with Asset
Sales and other sales of assets.
Lien means any lien, mortgage, pledge, security interest,
charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease
in the nature thereof, and any agreement to give any
security interest).
Loan or Loans means one or more of the Term Loans,
the Revolving Loans, the Swingline Loans and the Bid Rate
Loans, or any combination thereof.
Loan Documents means this Agreement, the Notes, the
Commitment Letter, the Pledge Agreement, the Subsidiary
Guaranties, the Letters of Credit and any applications for,
or reimbursement agreements and other documents or
certificates executed in favor of an Issuing Lender relating
to, the Letters of Credit.
Margin Stock has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
Marketable Securities means shares of capital stock that
trade on the New York Stock Exchange, the American
Stock Exchange or the London Stock Exchange, and bonds,
debentures, notes and other evidences of Indebtedness that
bear ratings issued by Standard & Poor s Corporation or
Moody s Investors Service, Inc. and that trade freely in the
secondary markets established for such respective types of
Indebtedness.
Material Adverse Effect means (i) a material adverse
effect upon the business, operations, properties, assets or
condition (financial or otherwise) of Company and its
Subsidiaries (taken as a whole), (ii) the impairment of the
ability of any Credit Party to perform its Obligations, or
(iii) the impairment of the ability of Agent or Lenders to
enforce the Obligations.
Material Subsidiary means each Subsidiary of Company
now existing or hereof acquired or formed by Company
which (x) for the most recent fiscal year of Company
accounted for more than five percent of the consolidated
revenues of Company or (y) as at the end of such fiscal
year, was the owner of more than five percent of the
consolidated assets of Company.
Minimum Adjusted Tangible Net Worth means
$240,164,000. Such amount shall increase on the first day
of each fiscal quarter of Company by an amount equal to
fifty percent of the Consolidated Net Income of Company,
if positive, calculated as of the last day of the immediately
preceding fiscal quarter.
Multiemployer Plan means a multiemployer plan within
the meaning of Section 4001(a)(3) of ERISA to which
Company or any ERISA Affiliate is, or ever has,
contributed or to which Company or any ERISA Affiliate
has, or ever has had, an obligation to contribute.
Net Cash Proceeds means, in the case of any Asset Sale,
Cash Proceeds, net of (i) bona fide direct costs of sale
(including without limitation (a) taxes reasonably estimated
to be actually payable as a result of such Asset Sale within
two years of the date of the Asset Sale, (b) payment of the
outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans
and other Obligations) required to be repaid under the terms
thereof as a result of such Asset Sale, and (c) brokerage
fees) and (ii) appropriate amounts provided by Company as
a reserve, in accordance with GAAP, against any liabilities
directly associated with the assets sold in such Asset Sale
and retained by Company or any of its Subsidiaries after
such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities and liabilities
related to environmental matters or against any
indemnification obligations associated with such Asset
Sale.
Net Capital Expenditures means, for any twelve-month
period, Consolidated Capital Expenditures made during the
period of determination, minus the Capital Expenditure
Credit calculated as at the last day of the most recently
ended fiscal quarter of Company.
Non-Marketable Securities means capital stock, shares,
bonds, debentures, notes and other evidences of
indebtedness that do not satisfy the definition of
Marketable Securities set forth in this Agreement.
Notes means one or more of the Term Notes and
Revolving Notes or any combination thereof.
Notice of Bid Rate Loan Borrowing has the meaning
assigned to that term in subsection 2.1.E.
Notice of Borrowing means a notice substantially in the
form of Exhibit I annexed hereto with respect to a proposed
borrowing.
Notice of Conversion/Continuation means a notice
substantially in the form of Exhibit III annexed hereto with
respect to a proposed conversion or continuation.
Notice of Request for Letter of Credit means a notice
substantially in the Form of Exhibit II annexed hereto with
respect to a request for issuance of a Letter of Credit.
Obligations means all obligations of every nature
(including Contingent Obligations) of each Credit Party
from time to time owed to Agent or Lenders or any of them
under the Loan Documents.
Officers Certificate means, as applied to any corporation,
a certificate executed on behalf of such corporation by its
Chairman of the Board (if an officer) or its President or one
of its financial officers, who must hold the rank of at least
vice president or secretary, and by its chief financial
officer, controller or treasurer; provided that every Officers
Certificate with respect to the compliance with a condition
precedent to the making of any Loans hereunder shall
include (i) a statement that the officer or officers making or
giving such Officers Certificate have read such condition
and any definitions or other provisions contained in this
Agreement relating thereto, (ii) a statement that, in the
opinion of the signers and on behalf of the Person for
whom such certificate is being delivered, they have made or
have caused to be made such examination or investigation
as is necessary to enable them to determine whether or not
such condition has been complied with, and (iii) a
statement that, based on such investigation, such signers
believe such condition has been complied with.
Old Credit Agreement means that certain Amended and
Restated Credit Agreement dated as of June 16, 1989
among Company, WPI, the lenders listed therein, Bankers,
as agent and as co-manager, National Westminster Bank
USA, as co-manager and Continental Bank, as trustee, as
amended.
Operating Lease means, as applied to any Person, any
lease (including, without limitation, leases that may be
terminated by the lessee at any time) of any property
(whether real, personal or mixed) that is not a Capital
Lease, other than any such lease under which such Person
is the lessor.
PBGC means the Pension Benefit Guaranty Corporation
(or any successor thereto).
Pension Plan means any Employee Benefit Plan that is
subject to the provisions of Title IV of ERISA and that is
maintained for employees of Company or any of its ERISA
Affiliates.
Permitted Encumbrances means the following types of
Liens:
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the time,
required by subsection 5.3;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens
imposed by law incurred in the ordinary course of business
for sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any,
as shall be required by GAAP or applicable statute shall
have been made therefor;
(iii) Liens (other than any Lien imposed under
Section 401(a)(29) or 412(n) of the Internal Revenue Code
or under ERISA or arising from or as a result of any
Environmental Laws) incurred or deposits made in the
ordinary course of business in connection with workers
compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders,
statutory obligations (but not any Liens or obligations
arising from or as a result of any Environmental Law),
surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money), the
existence of which individually or in the aggregate would
not have a Material Adverse Effect;
(iv) Liens with respect to deposits made in
connection with social security withholding taxes, which
taxes are paid within five Business Days of the date such
deposits are required to be paid over;
(v) any attachment or judgment Lien not in excess of
$5,000,000 individually or in the aggregate unless the
judgment it secures shall, within thirty days after the entry
thereof, not have been discharged or execution thereof
stayed pending appeal, or shall not have been discharged
within thirty days after the expiration of any such stay;
(vi) leases or subleases granted to others not
interfering in any material respect with the business of
Company or any of its Subsidiaries;
(vii) easements, rights-of-way, restrictions, minor
defects, encroach- ments or irregularities in title and other
similar charges or encumbrances not interfering in any
material respect with the ordinary conduct of the business
of Company or any of its Subsidiaries;
(viii) any interest or title of a lessor or sublessor under
any lease;
(ix) Liens arising from filing UCC financing
statements relating solely to the specific asset subject to a
lease or the specific assets sold pursuant to a receivables
financing facility established for the benefit of Company or
any of its Subsidiaries;
(x) Liens to secure Indebtedness incurred by Company
or any of its Subsidiaries to finance the acquisition of the
assets purchased with the proceeds of such Indebtedness;
provided that the Lien encumbers only the assets so
purchased and is created within ninety days of the date of
such acquisition;
(xi) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods
incurred in the ordinary course of business; and
(xii) Liens described in Schedule E annexed hereto.
Person means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock
companies, Joint Ventures, associations, companies, trusts,
banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and
governments and agencies and political subdivisions
thereof.
Pledge Agreement means the Pledge Agreement to be
executed and delivered by Company on the Closing Date,
substantially in the form of Exhibit X annexed hereto, as
such Pledge Agreement may hereafter be amended,
supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.
Potential Event of Default means, as of any date of
determination, a condition or event that, after the giving of
notice or lapse of time or both, would constitute an Event
of Default if that condition or event were not cured or
removed within any applicable grace or cure period.
Prescribed Forms shall mean such duly executed form(s)
or statement(s), and in such number of copies, which may,
from time to time, be prescribed by law and which pursuant
to applicable provisions of (a) any income tax treaty
between the United States of America and the country of
residence of the Lender providing the form(s) or
statement(s), (b) the Internal Revenue Code of 1986, as
amended or (c) any applicable rule or regulation under the
Internal Revenue Code of 1986, as amended, permit
Company to make payments hereunder for the account of
such Lender free of deduction or withholding of income or
similar taxes.
Pricing Level means for any Pricing Period, Pricing Level
I, Pricing Level II, or Pricing Level III, as may be in effect
for such Pricing Period. The Pricing Level in effect from
the Closing Date to but excluding the first Pricing Level
Calculation Date following the Closing Date shall be
deemed to be Pricing Level II. Notwithstanding anything to
the contrary contained herein, if any Event of Default has
occurred and been in existence for ten Business Days or
longer, the Pricing Level in effect shall be Pricing Level III
for so long as such Event of Default is continuing.
Pricing Level I means the Pricing Level that will be in
effect for the applicable Pricing Period if, as at the relevant
Date of Determination, (i) the Adjusted Leverage Ratio is
less than 0.5:1 and (ii) the Adjusted Interest Coverage Ratio
is greater than 3:1.
Pricing Level II means the Pricing Level that will be in
effect for the applicable Pricing Period if, as at the relevant
Date of Determination, (i) the Adjusted Leverage Ratio is
greater than or equal to 0.5:1 and less than 0.9:1 and (ii) the
Adjusted Interest Coverage Ratio is greater than 3:1.
Pricing Level III means the Pricing Level that will be in
effect for the applicable Pricing Period if, as at the relevant
Date of Determination, (i) the Adjusted Leverage Ratio is
greater than or equal to 0.9:1 or (ii) the Adjusted Interest
Coverage Ratio is less than or equal to 3:1.
Pricing Level Calculation Date means the date that is
forty-five days after the most recent Date of Determination.
Pricing Period means the period commencing on the last
preceding Pricing Level Calculation Date and ending on the
forty-fourth day of the next succeeding fiscal quarter of
Company following such Pricing Level Calculation Date.
Prime Rate means the rate that Agent announces from
time to time as its prime lending rate, as in effect from time
to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually
charged to any customer. Bankers or any other Lender may
make commercial loans or other loans at rates of interest at,
above or below the Prime Rate.
Pro Rata Share means, with respect to matters relating to
a particular Commitment (including the making or payment
of Loans pursuant to that Commitment) of a Lender, the
percentage obtained by dividing (x) such Commitment of
that Lender by (y) all such Commitments of all Lenders, as
such percentage may be adjusted by assignments permitted
pursuant to subsection 9.1. The initial Pro Rata Share of
each Lender is set forth opposite the name of that Lender
on Schedule B annexed hereto.
Productive Assets means productive replacement assets
of a similar nature to those so replaced that are then used or
usable in the business of Company or any of its
Subsidiaries.
Reference Lender means Bankers and The Chase
Manhattan Bank, N.A.
Register has the meaning assigned to that term in
subsection 2.1.E.
Regulation D means Regulation D of the Board of
Governors of the Federal Reserve System as in effect from
time to time.
Regulatory Authority means any United States
governmental authority, central bank or comparable agency
having jurisdiction over any Lender.
Release means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor
or outdoor environment (including, without limitation, the
abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Materials), or
into or out of any Facility, including the movement of any
Hazardous Material through the air, soil, surface water,
groundwater or property.
Reporting Division means each of the divisions of the
operations of Company or any of its Material Subsidiaries,
as set forth on Schedule C annexed hereto as such Schedule
may hereafter be amended, supplemented or modified from
time to time by Company.
Requisite Lenders means (i) during the Revolving Period,
Lenders having 66-2/3% or more of the Revolving Loan
Commitments or if the Revolving Loan Commitments have
been terminated, Lenders holding 66-2/3% or more of the
aggregate principal amount of the Revolving Loans,
Swingline Loans and Bid Rate Loans outstanding; or (ii)
during the Term Period, Lenders holding 66-2/3% or more
of the aggregate principal amount of the Term Loans
outstanding. As used herein, Requisite Lenders includes
Bankers in its capacity as a Lender; where references are
made to Agent and Requisite Lenders , Bankers interest
shall be included both as Agent and as Lender.
Restricted Junior Payment means (i) any dividend or
other distribution, direct or indirect, on account of any
shares of any class of stock of Company now or hereafter
outstanding, except a dividend payable solely in shares of
that class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of Company now or
hereafter outstanding and (iii) any payment made to retire,
or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of
stock of Company now or hereafter outstanding.
Revolving Loan Commitment or Revolving Loan
Commitments means the commitment or commitments of
a Lender or Lenders to make Revolving Loans, Bid Rate
Loans and Swingline Loans as set forth in subsection 2.1,
subject to the terms and conditions contained therein.
Revolving Loans means the Revolving Loans made by
Lenders to Company pursuant to subsection 2.1.A.
Revolving Notes means the promissory notes of
Company issued pursuant to subsection 2.1.F and in
substantially the form of Exhibit V annexed hereto, as they
may be amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof.
Revolving Period means the period commencing on the
Closing Date and ending on the date occurring on the third
anniversary of the Closing Date.
Scheduled Term Loans Principal Payments means, with
respect to the prin- cipal payments of Term Loans required
pursuant to subsection 2.2.B, for each date set forth below,
the correlative amount set forth opposite thereto, as
adjusted by operation of the following sentence:
Date Scheduled Term Loans Principal Payment
December 31, 1993 12.50% of Term Loans made on
Term Loan Funding Date
March 31, 1994 12.50% of Term Loans made on Term
Loan Funding Date
June 30, 1994 12.50% of Term Loans made on Term
Loan Funding Date
September 30, 1994 12.50% of Term Loans made on
Term Loan Funding Date
December 31, 1994 12.50% of Term Loans made on
Term Loan Funding Date
March 31, 1995 12.50% of Term Loans made on Term
Loan Funding Date
June 30, 1995 12.50% of Term Loans made on Term
Loan Funding Date
September 30, 1995 12.50% of Term Loans made on
Term Loan Funding Date
On the date any Loans are prepaid pursuant to subsection
2.6.A or 2.A.B.(i), the Scheduled Term Loans Principal
Payments set forth above shall be reduced by the amount of
such prepayment, such reduction to be effected by reducing
the amounts set forth above that correspond to the maturity
or maturities of the Scheduled Term Loans Principal
Payment required to be reduced in the manner provided in
subsection 2.6.A or 2.6.B.(ii), as the case may be; provided
that the Scheduled Term Loans Principal Payment for the
Commitment Termination Date shall be an amount, if such
amount is different from that specified above, sufficient to
repay all amounts owing by Company under the Term
Loans.
Securities means any capital stock, shares, voting trust
certificates, bonds, debentures, options, warrants, notes or
other evidences of indebtedness (secured or unsecured,
convertible, subordinated or otherwise), any instruments
commonly known as securities , and any certificates of
interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right
to subscribe to, purchase or acquire, any of the foregoing.
Separate Letter of Credit Facility means the letter of
credit facility or facilities established for the benefit of
Company and its Subsidiaries by The Bank of Tokyo Trust
Company or one of its affiliates, or by any other
commercial banking institution or institutions, on terms and
conditions reasonably satisfactory to Requisite Lenders, for
the purpose of issuing letters of credit for the account of
Company that support obligations of Company and any of
its Subsidiaries.
Separate Letter of Credit Facility Usage means, as at any
date of deter- mination with respect to all outstanding
letters of credit under the Separate Letter of Credit Facility,
the sum of (i) the maximum aggregate amount which is or
at any time thereafter may become available for drawing
under such letters of credit plus (ii) the aggregate amount of
all drawings under such letters of credit honored by the
issuer thereof and not theretofore reimbursed.
Solvent means, with respect to any Person, that as of the
date of determina- tion, both (A) (i) the then fair saleable
value of the property of such Person is (y) greater than the
total amount of liabilities (including the maximum amount
of contingent liabilities identified by such Person) of such
Person and (z) greater than the amount that will be required
to pay the probable liabilities of such Person s then existing
debts as they become absolute and matured considering all
financing alternatives and potential asset sales reasonably
available to such Person; (ii) such Person will not lack
sufficient capital for the needs and anticipated needs for
capital of such Person s business, including identified
contingent liabilities; and (iii) such Person does not intend
to incur, or believe or reasonably should believe that it will
incur, debts beyond its ability to pay such debts as they
become due and (B) such Person is solvent within the
meaning given that term and similar terms under applicable
laws relating to fraudulent transfers.
Subordinated Indebtedness means the Easco Debt and the
WPI Debt.
Subsidiary means, with respect to any Person, any
corporation, association or other business entity of which
more than 50% of the total voting power of shares of stock
entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof.
Subsidiary Guaranty means each guaranty to be
executed and delivered by each Material Subsidiary
pursuant to subsection 3.1 or 5.7, as the case may be, each
substantially in the form of Exhibit VII annexed hereto, as
each such guaranty may hereafter be amended,
supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof, and
Subsidiary Guaranties means all such guaranties
collectively.
Swingline Loan Commitment means the commitment of
Bankers to make Swingline Loans as set forth in subsection
2.1.B.
Swingline Loans means the Swingline Loans made by
Bankers to Company on or after the Closing Date pursuant
to subsection 2.1.B.
Term Loan Commitment or Term Loan Commitments
means the commitment or commitments of a Lender or
Lenders to make Term Loans as set forth in subsection
2.2.A.
Term Loan Funding Date means the date that is the third
anniversary of the Closing Date.
Term Loans means the Loans made by Lenders to
Company pursuant to subsection 2.2.A.
Term Notes means the promissory note of Company
issued pursuant to subsection 2.1.F substantially in the form
of Exhibit IV annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time in
accordance with the terms hereof.
Term Period means the period commencing on the date
occurring on the third anniversary of the Closing Date and
ending on the date occurring on the fifth anniversary of
Closing Date.
Total Utilization of Revolving Loan Commitments
means, as at any date of determination, the sum of (i) the
aggregate principal amount of all outstanding Revolving
Loans, plus (ii) the aggregate principal amount of all
outstanding Swingline Loans, plus (iii) the aggregate
principal amount of all outstanding Bid Rate Loans, plus
(iv) the Letter of Credit Usage, plus (v) the amount by
which the Separate Letter of Credit Facility Usage exceeds
$25,000,000, plus (vi) the amount of the Excess
Investments in Securities.
Trustee means either (i) if Company has appointed
Continental Bank to act as Trustee hereunder and
Continental Bank has accepted such appointment, for so
long as Continental Bank is acting as Trustee hereunder,
Continental Bank solely in its capacity as Trustee
hereunder, or (ii) so long as Company elects to act as
Trustee hereunder, Company in its capacity as Trustee;
provided that the provisions of Section 10 shall not apply to
the rights and duties of Company acting as Trustee.
Anything contained herein to the contrary notwithstanding,
Continental Bank shall have no rights, duties or obligations
in the capacity of Trustee hereunder until such time as it
may be appointed to act as Trustee pursuant to and in
accordance with the terms of Section 10.
WPI means Western Pacific Industries, Inc., a Delaware
corporation and a wholly-owned Subsidiary of Company.
WPI Debt means the 10% Subordinated Debentures due
July 1, 2001 of WPI in the form issued pursuant to that
certain Indenture dated June 15, 1976 by and between WPI
and The Connecticut Bank & Trust Company, as Trustee,
as in effect on the Closing Date.
1.2. Accounting Terms; Utilization of GAAP for Purposes
of Calculations Under Agreement
Except as otherwise expressly provided in this Agreement,
all accounting terms not otherwise defined herein shall
have the meanings assigned to them in conformity with
GAAP. Calculations made in connection with the
definitions, covenants and other provisions of this
Agreement shall utilize accounting principles and policies
in conformity with those used to prepare the Financial
Statements.
1.3. Other Definitional Provisions
References to Sections and subsections shall be to
Sections and subsections, respectively, of this Agreement
unless otherwise specifically provided. Any of the terms
defined in subsection 1.1 may, unless the context otherwise
requires, be used in the singular or the plural, depending on
the reference.
SECTION 2.
AMOUNTS AND TERMS OF LOANS AND
LETTERS OF CREDIT
2.1.Revolving Loans, Swingline Loans and Bid Rate Loans
A. Revolving Loan Commitments.
Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of
Company herein set forth, each Lender hereby severally
agrees, subject to the limitations set forth below with
respect to the maximum amount of Revolving Loans
permitted to be outstanding from time to time, to make
Revolving Loans to Company during the period from the
Closing Date through but excluding the Term Loan
Funding Date in an amount not exceeding its Pro Rata
Share of the aggregate Revolving Loan Commitments for
the purposes identified in subsection 2.7.B. Each Lender s
commitment to make Revolving Loans to Company
pursuant to this subsection 2.1.A is herein called its
Revolving Loan Commitment and such commitments of
all Lenders in the aggregate are herein called the
Revolving Loan Commitments . The initial amount of each
Lender s Revolving Loan Commitment is set forth opposite
its name on Schedule B annexed hereto and the aggregate
initial amount of all Revolving Loan Commitments is
$285,000,000. The amount of the Revolving Loan
Commitments shall be reduced by the amount of all
reductions thereof made pursuant to subsection 2.6 through
the date of determination. In no event shall the aggregate
principal amount of the Revolving Loans from any Lender
outstanding at any time exceed the amount of its Revolving
Loan Commitment then in effect. Each Lender s Revolving
Loan Commitment shall expire on the Term Loan Funding
Date and all Revolving Loans shall be paid in full no later
than that date.
Notwithstanding the foregoing provisions of this
subsection 2.1.A, the amount otherwise available to be
borrowed or maintained as Revolving Loans under the
Revolving Loan Commitments as of any time of
determination (other than (x) to repay Swingline Loans or
Bid Rate Loans and accrued and unpaid interest thereon
and (y) to reimburse any Issuing Lender for the amount of
any drawings under any Letters of Credit honored by such
Issuing Lender and not theretofore reimbursed by
Company) shall be reduced by an amount equal to the sum
of (a) the principal amount of all outstanding Swingline
Loans plus (b) the principal amount of all outstanding Bid
Rate Loans plus (c) the Letter of Credit Usage in respect of
Letters of Credit plus (d) the amount by which the Separate
Letter of Credit Facility Usage exceeds $25,000,000 as at
such date of determination plus (e) the amount of the
Excess Investments in Securities as at such date of
determination.
Subject to subsection 2.8.A.(ii), all Revolving Loans under
this Agreement shall be made by Lenders simultaneously
and proportionately to their Pro Rata Shares, it being
understood that no Lender shall be responsible for any
default by any other Lender in that other Lender s
obligation to make Revolving Loans hereunder nor shall
the Revolving Loan Commitment of any Lender be
increased or decreased as a result of the default by any
other Lender in that other Lender s obligation to make
Revolving Loans hereunder.
Amounts borrowed by Company under this subsection
2.1.A may be repaid and, through but excluding the Term
Loan Funding Date, reborrowed. Revolving Loans made on
any Funding Date shall be in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000
in excess of that amount. Anything contained in this
subsection 2.1.A to the contrary
notwithstanding, Company may not borrow Revolving
Loans more than three times during any week other than
Revolving Loans used solely to repay Swingline Loans or
Bid Rate Loans. Anything contained in this Agreement to
the contrary notwithstanding, in no event shall the Total
Utilization of Revolving Loan Commitments exceed the
Revolving Loan Commitments then in effect.
B. Swingline Loan Commitment.
Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of
Company set forth herein, Bankers hereby agrees, subject
to the limitations set forth below with respect to the
maximum amount of Swingline Loans permitted to be
outstanding from time to time, to make a portion of the
Revolving Loan Commitments available to Company from
time to time during the period from the Closing Date
through and excluding the Term Loan Funding Date in an
aggregate principal amount of up to $10,000,000 by
making Swingline Loans to Company, notwithstanding the
fact that such Swingline Loans, when aggregated with
Bankers outstanding Revolving Iowans and Bid Rate
Loans, may exceed Bankers Revolving Loan Commitment.
The commitment of Bankers to make Swingline Loans to
Company pursuant to this subsection 2.1.B is herein called
its Swingline Loan Commitment . In no event shall (a) the
aggregate principal amount of Swingline Loans outstanding
at any time exceed the Swingline Loan Commitment, (b)
the Total Utilization of Revolving Loan Commitments
exceed the aggregate Revolving Loan Commitments then in
effect or (c) the Swingline Loan Commitment exceed the
aggregate Revolving Loan Commitments. Any reduction of
the Revolving Loan Commitments made pursuant to
subsection 2.6 which reduces the Revolving Loan
Commitments below the then current amount of the
Swingline Loan Commitment shall result in an automatic
corresponding reduction of the Swingline Loan
Commitments to the amount of the Revolving Loan
Commitments, as so reduced, without any further action on
the part of Bankers. The proceeds of Swingline Loans shall
be used for the purposes identified in subsection 2.7.B.
The Swingline Loan Commitment shall expire on the Term
Loan Funding Date and all Swingline Loans shall be paid
in full no later than that date.
Amounts borrowed by Company under this subsection
2.1.B may be repaid and, through but excluding the Term
Loan Funding Date, reborrowed. All Swingline Loans shall
be made as Base Rate Loans and shall not be entitled to be
converted into CD Rate Loans or Eurodollar Rate Loans.
Swingline Loans made on any Funding Date shall be in an
aggregate minimum amount of $100,000.
Bankers may, at any time in its sole and absolute
discretion, and on the fifth Business Day after the making
of a Swingline Loan which has not been voluntarily prepaid
by Company pursuant to subsection 2.6.A shall, on one
Business Day s notice to Agent and Company, so long as
amounts are available to be borrowed under the Revolving
Loan Commitments, require each other Lender, and each
Lender hereby agrees, subject to this subsection 2.1.B, to
make a Revolving Loan (which shall initially be funded as
a Base Rate Loan) in an amount equal to such Lender s Pro
Rata Share of the amount of the Swingline Loans (
Refunded Swingline Loans ) outstanding on the date notice
is given which Bankers requests the Lenders to prepay;
provided, however, the obligation of each Lender to make
any such Revolving Loan is subject to the condition that (i)
Bankers believed in good faith that all conditions under
Section 3 to the making of such Swingline Loan were
satisfied at the time such Swingline Loan was made, or (ii)
such other Lender had actual knowledge, by receipt of the
statements required pursuant to subsection 5.1 or otherwise,
that any such condition had not been satisfied and failed to
notify Agent in writing at or before the time for the making
of the relevant Refunded Swingline Loans that it had no
obligation to make Revolving Loans until such condition
was satisfied (which notice shall be effective as of the date
of receipt by Agent), or (iii) the satisfaction of any such
condition not satisfied had been waived by Bankers prior to
or at the time such Swingline Loan was made. In the case
of Revolving Loans made by Lenders other than Bankers
under the immediately preceding sentence, each such other
Lender shall make the amount of its Revolving Loan
available to Bankers, in same day funds, at the office of
Bankers located at One Bankers Trust Plaza, New York,
New York, not later than 11:00 A.M. (New York time) on
the Business Day next succeeding the date such notice is
given. The proceeds of such Revolving Loans shall be
immediately applied to repay the Refunded Swingline
Loans. On the day such Revolving Loans are made,
Bankers Pro Rata Share of the Refunded Swingline Loans
shall be deemed to be paid with the proceeds of a
Revolving Loan made by Bankers and such portion of the
Swingline Loans deemed to be so paid shall no longer be
outstanding as Swingline Loans and shall be due as
Revolving Loans. Company authorizes Bankers to charge
Company s accounts with Bankers (up to the amount
available in each such account) in order to immediately pay
Bankers the amount of such Refunded Swingline Loans to
the extent amounts received by Bankers, including amounts
deemed to be received from Bankers, are not sufficient to
repay in full such Refunded Swingline Loans. If any
portion of any such amount paid (or deemed to be paid) to
Bankers should be recovered by or on behalf of Company
from Bankers in bankruptcy, by assignment for the benefit
of creditors or otherwise, the loss of the amount so
recovered shall be ratably shared among all Lenders in the
manner contemplated by subsection 9.5. Subject to the
proviso contained in the first sentence of this paragraph,
each Lender s obligation to make the Revolving Loans
referred to in this paragraph shall be absolute and
unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which
such Lender may have against Bankers, Company or
anyone else for any reason whatsoever; (ii) the occurrence
or continuance of an Event of Default or a Potential Event
of Default; (iii) any adverse change in the condition
(financial or otherwise) of Company; (iv) any breach of this
Agreement by Company or any other Lender; (v) the
acceleration or maturity of any Loans or the termination of
the Revolving Loan Commitments after the making of the
Swingline Loans; or (vi) any other circumstance, happening
or event whatsoever, whether or not similar to any of the
foregoing.
In the event that Company or any of its Subsidiaries has
filed for protection under the Bankruptcy Code, or
otherwise if Bankers requests, and, in any event, subject to
satisfaction of the conditions set forth in the proviso to the
first sentence of the preceding paragraph, each Lender shall
acquire without recourse or warranty an undivided
participation interest equal to such Lender s Pro Rata Share
of any Swingline Loan otherwise required to be repaid by
such Lender pursuant to the preceding paragraph by paying
to Bankers on the date on which such other Lender would
otherwise have been required to make a Revolving Loan in
respect of such Swingline Loan pursuant to the preceding
paragraph, in immediately available funds, an amount equal
to such Lender s Pro Rata Share of such Swingline Loan,
and no Revolving Loans shall be made by such Lender
pursuant to the preceding paragraph. If such amount is not
in fact made available to Bankers by such other Lender on
the date when Revolving Loans would otherwise be
required to be made pursuant to the preceding paragraph,
Bankers shall be entitled to recover such amount on
demand from such other Lender together with interest
accrued from such date at the customary rate set by Bankers
for the correction of errors among banks for three Business
Days and thereafter at the rate of interest then applicable to
Base Rate Loans. From and after the date on which any
Lender purchases an undivided participation interest in a
Swingline Loan pursuant to this paragraph, Bankers shall
promptly distribute to such other Lender such Lender s Pro
Rata Share of all payments of principal and interest in
respect of such Swingline Loan.
A copy of each notice given by Bankers to Lenders
pursuant to the preceding paragraph shall be promptly
delivered by Bankers to Company. Upon the making of a
Revolving Loan by a Lender pursuant to this subsection
21.B, the amount so funded shall become due as a
Revolving Loan and shall no longer be owed as a
Swingline Loan.
Notwithstanding anything herein to the contrary, Bankers
shall not be obligated to make any Swingline Loans if it has
elected after the occurrence and during the continuation of
a Potential Event of Default or Event of Default not to
make Swingline Loans and has notified Company in
writing or by telephone of such election.
C. Notice of Borrowing.
Whenever Company desires that Lenders make Revolving
Loans under subsection 2.1.A or Term Loans under
subsection 2.2.A, it shall deliver to Agent a No- tice of
Borrowing no later than 11:00 A.M. (New York time) on
the proposed Funding Date in the case of Revolving Loans
to be made as Base Rate Loans on a Bid Rate Loan
Shortfall Date in an aggregate amount not to exceed the
applicable Bid Rate Loan Shortfall Amount or at least one
Business Day in advance of the proposed Funding Date in
the case of any other Base Rate Loan or any CD Rate Loan
or three Business Days in advance of the proposed Funding
Date in the case of a Eurodollar Rate Loan. Whenever
Company desires to borrow a Swingline Loan under
subsection 2.1.B, it shall deliver to Bankers a Notice of
Borrowing no later than 12:00 noon (New York time) on
the proposed Funding Date. The Notice of Borrowing shall
specify (i) the proposed Funding Date (which shall be a
Business Day), (ii) the amount of the proposed Loans and
whether such Loans are to be made as Swingline Loans,
Revolving Loans or Term Loans; provided that in the case
of a Notice of Borrowing delivered on a Bid Rate Loan
Shortfall Date requesting Base Rate Loans to be made as
Revolving Loans on such Bid Rate Loan Shortfall Date, the
amount of such proposed Revolving Loans may not exceed
the Bid Rate Loan Shortfall Amount in respect of such Bid
Rate Loan Shortfall Date, (iii) whether such Revolving
Loans or Term Loans are initially to consist of Base Rate
Loans, CD Rate Loans or Eurodollar Rate Loans or a
combination thereof, (iv) if such Revolving Loans or Term
Loans, or any portion thereof, are initially to be CD Rate
Loans or Eurodollar Rate Loans, the amounts thereof and
the initial Interest Periods therefor and (v) in the case of a
Notice of Borrowing delivered on a Bid Rate Loan
Shortfall Date requesting Base Rate Loans to be made as
Revolving Loans on such Bid Rate Loan Shortfall Date,
that the amount of such proposed Revolving Loans does
not exceed the Bid Rate Loan Shortfall Amount in respect
of such Bid Rate Loan Shortfall Date; and such Notice of
Borrowing shall further certify that subsection 3.3 is
satisfied on and as of that Funding Date; provided that (a)
the minimum amount of CD Rate Loans with a particular
Interest Period included as a portion of any such
combination, if any, shall be $5,000,000 and integral
multiples of $1,000,000 in excess of that amount, and (b)
the minimum amount of Eurodollar Rate Loans with a
particular Interest Period included as a portion of any such
combination, if any, shall be $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.
Revolving Loans and Term Loans may be continued as or
converted into Base Rate Loans, CD Rate Loans and
Eurodollar Rate Loans in the manner provided in
subsection 2.3.E. In lieu of delivering the above-described
Notice of Borrowing, Company may give Agent telephonic
notice by the required time of any proposed borrowing
under this subsection 2.1; provided that such notice shall be
promptly confirmed in writing by delivery of a Notice of
Borrowing to Agent on or prior to the Funding Date of the
requested Revolving Loans, Term Loans or Swingline
Loans, as the case may be.
Neither Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to
above which Agent believes in good faith to have been
given by a duly authorized officer or other person
authorized to borrow on behalf of Company or for
otherwise acting in good faith under this subsection 2.1.C
and upon funding of Revolving Loans or Term Loans by
any Lender or Swingline Loans by Bankers in accordance
with this Agreement pursuant to any such telephonic notice
Company shall have effected Revolving Loans, Term
Loans or Swingline Loans, as applicable, hereunder.
Except as provided in subsection 2.8.D, a Notice of
Borrowing for a Eurodollar Rate Loan or a CD Rate Loan
(or telephonic notice in lieu thereof) shall be irrevocable on
and after the related Interest Rate Determination Date, and
Company shall be bound to make a borrowing in
accordance therewith.
D. Disbursement of Funds.
Promptly after receipt of a Notice of Borrowing for
Revolving Loans pursuant to subsection 2.1.C (or
telephonic notice in lieu thereof) or the deemed receipt of a
Notice of Borrowing pursuant to subsection 2.4.C, Agent
shall notify each Lender of the proposed borrowing.
Promptly after receipt of a Notice of Borrowing for a
Swingline Loan, Bankers shall make the amount of its
Swingline Loan available, in same day funds, at the office
of Bankers located at One Bankers Trust Plaza, New York,
New York, not later than 12:00 noon (New York time) on
the Funding Date. Each Lender shall make the amount of
its Revolving Loan available to Agent, in same day funds,
at the office of Agent located at One Bankers Trust Plaza,
New York, New York, not later than 12:00 noon (New
York time) on the Funding Date. Except as provided in
subsection 2.1.B with respect to the repayment of
Swingline Loans and subsection 2.4.D, upon satisfaction or
waiver of the conditions precedent specified in subsection
3.3, Agent shall make the proceeds of such Loans available
to Company on such Funding Date by causing an amount
of same day funds equal to the proceeds of all such Loans
received by Agent to be credited to the account of
Company at such office of Agent.
Unless Agent shall have been notified by any Lender prior
to any Funding Date that such Lender does not intend to
make available to Agent such Lender s Loan on such
Funding Date, Agent may assume that such Lender has
made such amount available to Agent on such Funding
Date and Agent in its sole discretion may, but shall not be
obligated to, make available to Company a corresponding
amount on such Funding Date. If such corresponding
amount is not in fact made available to Agent by such
Lender, Agent shall be entitled to recover such
corresponding amount on demand from such Lender
together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Agent,
at the customary rate set by Agent for the correction of
errors among banks for three Business Days and thereafter
at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Agent s demand
therefor, Agent shall promptly notify Company, and
Company shall immediately pay such corresponding
amount to Agent. Nothing in this subsection 2.1.D shall be
deemed to relieve any Lender from its obligation to fulfill
its Commitments hereunder or to prejudice any rights
which Company may have against any Lender as a result of
any default by such Lender hereunder.
E. Bid Rate Loans.
(i) The Bid Rate Option. Subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties of Company set forth herein,
in addition to Company requesting that Lenders make
Revolving Loans pursuant to subsection 2.1.A, Company
may, as set forth in this subsection 2.1.E, request Lenders
having Revolving Loan Commitments during the period
from and including the Closing Date to but excluding the
Term Loan Funding Date to make offers to make Bid Rate
Loans to Company; provided that the Total Utilization of
Revolving Loan Commitments shall in no event exceed the
Revolving Loan Commitments then in effect. Lenders may,
but shall have no obligation to, make such offers and
Company may, but shall have no obligation to, accept any
such offers in the manner set forth in this subsection 2.1.E.
(ii) Bid Rate Loan Quote Request. Whenever
Company desires to request offers to make Bid Rate Loans,
it shall transmit to Bid Rate Loan Agent (if other than
Company) by telecopy a Bid Rate Loan Quote Request
substantially in the form of Exhibit XI annexed hereto no
later than 11:00 A.M. (New York time) at least one
Business Day in advance of the proposed Funding Date set
forth therein. The Bid Rate Loan Quote Request shall
specify (i) the proposed Funding Date (which shall be a
Business Day not later than seven calendar days prior to the
Term Loan Funding Date, (ii) the amount of Bid Rate
Loans for each Bid Rate Loan Interest Period (of which
there may be up to three) for which offers are requested,
which shall be in a minimum principal amount of
$5,000,000 and in integral multiples of $1,000,000 in
excess of that amount and (iii) the duration of the Bid Rate
Loan Interest Period or Periods applicable thereto, subject
to the provisions set forth in the definition of Bid Rate
Loan Interest Period. Such Bid Rate Loan Quote Request
shall further certify that subsection 3.3 is satisfied on and as
of the date of such Bid Rate Loan Quote Request and will
be satisfied on and as of the date of the making of such Bid
Rate Loans. No Bid Rate Loan Quote Request shall be
given within three Business Days of any other Bid Rate
Loan Quote Request.
(iii) Invitation for Bid Rate Loan Quotes. Promptly
upon any request by Company for Bid Rate Loan Quotes
pursuant to the delivery of a Bid Rate Loan Quote Request
in accordance with the provisions of subsection 2.1.E.(ii),
but in no event later than the close of business on the date
of receipt thereof, Bid Rate Loan Agent shall send to
Lenders by telecopy an Invitation for Bid Rate Loan Quotes
substantially in the form of Exhibit XIII annexed hereto,
which shall constitute an invitation by Company to each
Lender to submit Bid Rate Loan Quotes offering to make
Bid Rate Loans to which such Bid Rate Loan Quote
Request relates in accordance with this subsection 2.1.E.
(iv) Submission and Contents of Bid Rate Loan
Quotes.
(a) Each Lender may, in its sole discretion, submit a
Bid Rate Loan Quote containing an offer or offers to make
Bid Rate Loans in response to any Invitation for Bid Rate
Loan Quotes. Each Bid Rate Loan Quote must comply with
the requirements of this subsection 2.1.E.(iv) and must be
received by Trustee by telecopy no later than 10:00 A.M.
(New York time) on the proposed Funding Date of such
Bid Rate Loans. Any Bid Rate Loan Quote so made shall
be irrevocable, subject to amendment or modification
solely in accordance with subsection 2.1.E.(v), except with
the written consent of Trustee given on the instructions of
Company.
(b) Each Bid Rate Loan Quote shall be in
substantially the form of Exhibit XII annexed hereto and
shall refer to this Agreement and specify (a) the proposed
Funding Date, (b) the principal amount of the Bid Rate
Loan offered, which principal amount (x) may be greater
than or less than the Revolving Loan Commitment of the
quoting Lender, (y) must be in a minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess
of that amount and (z) may not exceed the principal amount
of Bid Rate Loans for such Bid Rate Loan Interest Period
for which offers were requested, (c) the rate of interest per
annum (expressed as an absolute number and not in terms
of a specified margin over the quoting Lender s cost of
funds, and rounded to the nearest 1/10,000 of 1%) at which
such Lender is willing to make each such Bid Rate Loan
and (d) the identity of the quoting Lender.
(c) Any Bid Rate Loan Quote shall be disregarded
that (a) is not substantially in the form of Exhibit XII
annexed hereto or does not specify all of the information
required in subsection 2.1.E. (iv)(b), (b) contains
qualifying, conditional or similar language, (c) proposes
terms other than or in addition to those set forth in the
applicable Invitation for Bid Rate Loan Quotes or (d)
arrives after 10:00 A.M. on the proposed Funding Date.
(d) If any Lender shall elect not to make such an
offer, such Lender shall so notify Trustee via telecopy no
later than 10:00 A.M. (New York time) on the proposed
Funding Date; provided, however, that failure by any
Lender to give such notice shall not constitute a breach or
default by such Lender nor cause such Lender to be liable
to Company or any other party or be obligated to make any
Bid Rate Loan as part of such requested Bid Rate Loans.
(v) Notice to Agent and Company. Trustee (if other
than Company) shall (by telephone confirmed by telecopy)
promptly notify Company of the terms (x) of any Bid Rate
Loan Quote submitted by a Lender that is in accordance
with subsection 2.1.E.(iv) and (y) of any Bid Rate Loan
Quote that amends, modifies or is otherwise inconsistent
with a previous Bid Rate Loan Quote submitted by such
Lender with respect to the same Bid Rate Loan Quote
Request; provided that any such amending or modifying
Bid Rate Loan Quote shall be disregarded by Trustee unless
such amending or modifying Bid Rate Loan Quote is
submitted solely to correct a manifest error in such former
Bid Rate Loan Quote. Trustee s notice to Company shall
specify (i) the aggregate principal amount of Bid Rate
Loans for which offers have been received in response to a
Bid Rate Loan Quote Request, (ii) the respective principal
amounts and interest rates so offered and (iii) the identity of
each quoting Lender.
(vi) Acceptance and Notice by Company. Not later
than 11:00 A.M. (New York time) on the proposed Funding
Date, Company shall (by telephone confirmed by telecopy)
notify Trustee (if other than Company) (who shall promptly
so notify Agent and Lenders as set forth in subsection
2.1.E(viii)) of its acceptance or non-acceptance of the offers
so notified to it pursuant to subsection 2.1.E.(v). For the
purposes of this subsection 2.1.E.(vi), silence on the part of
Company shall be deemed to be a non-acceptance of all
offers so notified to it pursuant to subsection 2.1.E.(v). In
the case of acceptance, such notice (a Notice of Bid Rate
Loan Borrowing ) shall specify the aggregate principal
amount of offers for each Bid Rate Loan Interest Period
that are accepted. Company may accept any Bid Rate Loan
Quote in whole or in part; provided that (i) acceptance of
offers may only be made on the basis of ascending interest
rates, (ii) the aggregate principal amount of each borrowing
of Bid Rate Loans may not exceed the applicable amount
set forth in the related Bid Rate Loan Quote Request, (iii)
the principal amount of each Bid Rate Loan must be
$5,000,000 or integral multiples of $1,000,000 in excess of
that amount and (iv) Company may not accept any offer
that is described in subsection 2.1.E.(iv)(c) or that
otherwise fails to comply with the requirements of this
Agreement. Subject to the foregoing requirements,
Company may accept or reject, in its sole discretion, any
Bid Rate Loan Quote.
A Notice of Bid Rate Loan Borrowing given by
Company pursuant to this subsection 2.1.E.(vi) shall be
irrevocable.
(vii) Allocation by Company. If offers are made by
two or more Lenders at the same rate of interest for a
greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Bid Rate
Loan Interest Period, the principal amount of Bid Rate
Loans in respect of which such offers are accepted shall be
allocated pro rata by Company among such Lenders;
provided that no Lender whose Bid Rate Loan Quote is
accepted shall be allocated a Bid Rate Loan in a principal
amount less than $1,000,000. Determinations by Company
of the amounts of Bid Rate Loans shall be conclusive in the
absence of manifest error.
(viii) Notice to Agent and Lenders. Trustee shall (by
telephone promptly confirmed by telecopy) promptly notify
each Lender that has submitted a Bid Rate Loan Quote as
described in subsection 2.1.E.(iv)(a), if any, which of its
offers have been accepted by Company pursuant to the
delivery of a Notice of Bid Rate Loan Borrowing,
whereupon such Lender will become bound, subject to the
other applicable conditions hereof, to make the Bid Rate
Loan in respect of which its offer has been accepted.
Promptly after giving such notice, Trustee will deliver to
Agent and each Lender a confirmation specifying the date
and amount of the aggregate Bid Rate Loans made, the
amount, interest rate, Bid Rate Loan Interest Period and
Lender for each Bid Rate Loan made.
(ix) Funding of Bid Rate Loans. Not later than
12:00 noon (New York time) on the proposed Funding Date
specified for each Bid Rate Loan hereunder, each Lender
participating therein shall make the amount of its Bid Rate
Loan available to Company, in same day funds, at
Company s account number 50-194704 at the office of
Agent located at One Bankers Trust Plaza, New York, New
York. Upon satisfaction or waiver of the conditions
precedent specified in subsection 3.3, Agent shall make the
proceeds of all such Bid Rate Loans available to Company
on such Funding Date by causing an amount of same day
funds equal to the proceeds of all such Bid Rate Loans
received by Agent to be credited to the account of
Company at such office of Agent.
Unless Agent shall have received notice from a Lender
participating in a Bid Rate Loan prior to the Funding Date
of such Bid Rate Loan that such Lender will not make
available to Agent such Lender s Bid Rate Loan, Agent
may (but shall not be obligated to) assume that such Lender
has made such Bid Rate Loan available to Agent on the
Funding Date of such Bid Rate Loan in accordance with
this subsection 2.1.E.(ix) and Agent may, in reliance upon
such assumption, make available to Company a
corresponding amount on such Funding Date. If and to the
extent such Lender shall not have so made such Bid Rate
Loan available to Agent, then Agent shall be entitled to
recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from
such Funding Date until the date such amount is paid to
Agent, at the customary rate set by Agent for the correction
of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay
such corresponding amount forthwith upon Agent s demand
therefor, Agent shall promptly notify Company of the
amount of such Bid Rate Loan not funded by such Lender
and Company shall immediately pay such corresponding
amount to Agent. Nothing in this subsection 2.1.E.(ix) shall
be deemed to relieve any Lender from its obligation to
fulfill its commitment hereunder or to prejudice any rights
which Company may have against any Lender as a result of
any default by such Lender hereunder.
(x) Payment of Interest. Interest with respect to each
outstanding Bid Rate Loan shall be payable in arrears on
and to each Bid Rate Loan Interest Payment Date
applicable to that Bid Rate Loan, upon any prepayment of
such Bid Rate Loan (to the extent accrued on the amount
being prepaid) and at maturity.
(xi) Compensation. Company shall compensate
each Lender, upon written request by that Lender (which
request shall set forth in reasonable detail the basis for
requesting such amounts), for all reasonable losses,
expenses and liabilities (including, without limitation, any
interest paid by that Lender to lenders of funds borrowed
by it to make or carry its Bid Rate Loans and any loss
sustained by that Lender in connection with re-employment
of such funds), which that Lender may sustain with respect
to Bid Rate Loans: (i) if for any reason (other than a default
or error by that Lender) a borrowing of any Bid Rate Loan
does not occur on the date specified therefor in a Notice of
Bid Rate Loan Borrowing, (ii) if any prepayment of any of
such Lender s Bid Rate Loans occurs on a date which is not
the last day of the Bid Rate Loan Interest Period applicable
to that Bid Rate Loan, (iii) if any prepayment of any of
such Lender s Bid Rate Loans is not made on any date
specified in a notice of prepayment given by Company and
consented to by such Lender, or (iv) as a consequence of
any other default by Company to repay such Lender s Bid
Rate Loans when required by the terms of this Agreement.
(xii) Bid Rate Register. Agent shall maintain a
register for the recordation of the names and addresses of
Lenders and the principal amount of the Bid Rate Loans
owing to each Lender from time to time together with the
maturity and interest rates applicable to each Bid Rate
Loan, and other terms applicable thereto (the Bid Rate
Register ). The entries in the Bid Rate Register shall be
prima facie evidence with respect to the entries therein. The
Bid Rate Register shall be available for inspection by
Company or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(xiii) Maturity. Each Bid Rate Loan shall be payable
on the maturity date specified in the Bid Rate Request
relating to such Bid Rate Loan.
(xiv) Liability. Bid Rate Loan Agent shall not incur
any liability to Company in acting upon any telephonic
notice referred to herein which Bid Rate Loan Agent
believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on
behalf of Company or for otherwise acting in good faith
under this subsection 2.1.E and upon funding of Bid Rate
Loans by any Lender in accordance with this Agreement
pursuant to any such telephonic notice Company shall have
effected Bid Rate Loans hereunder.
F. Register.
(i) Agent shall maintain a register (the Register ) on
which it will record the Commitments from time to time of
each Lender, the Loans made by each Lender and each
repayment in respect of the principal amount of the Loans
of each Lender. Any such recordation shall be conclusive
and binding, absent manifest error.
(ii) Each Lender will record in its internal records the
amount of each Loan made by it and each payment in
respect thereof. Failure to make any such recordation, or
any error in such recordation, shall not affect Company's or
any other Credit Party s Obligations in respect of such
Loans. Any such recordation shall be conclusive and
binding, absent manifest error.
(iii) Any Lender may, by notice to Agent and
Company, request that all or part of the principal amount of
the Obligations of Company to such Lender in respect of its
Commitments hereunder be evidenced by a Term Note or a
Revolving Note, as applicable. Within three Business Days
of Company s receipt of such notice, Company shall
execute and deliver to Agent for delivery to the appropriate
Lender a Note or Notes in the principal amount(s) specified
in such notice, payable to the notifying Lender or, if so
specified in such notice, any Person who is an assignee of
such Lender pursuant to Section 9.1 hereof.
2.2. Term Loans
A. Term Loan Commitments.
Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of
Company herein set forth, each Lender severally agrees to
lend to Company on the Term Loan Funding Date an
amount not exceeding its Pro Rata Share of the aggregate
Term Loan Commitments to be used solely for the
purposes identified in subsection 2.7.A. Each Lender s
commitment to make Term Loans to Company pursuant to
this subsection 2.2.A is herein called its Term Loan
Commitment , and such commitments of all Lenders in the
aggregate are herein called the Term Loan Commitments .
The original amount of each Lender s Term Loan
Commitment is set forth opposite its name on Schedule B
annexed hereto and the aggregate original amount of the
Term Loan Commitments is $285,000,000. Each Lender s
Term Loan Commitment shall expire immediately after the
making of the Term Loans on the Term Loan Funding Date
and all Term Loans and all other amounts owed hereunder
with respect to Term Loans shall be paid in full no later
than the Commitment Termination Date; provided that each
Lender s Term Loan Commitment shall expire immediately
and without further action on the Term Loan Funding Date
if the Term Loans are not made on that date. Company may
make only one borrowing under the Term Loan
Commitments. Amounts borrowed and repaid under this
subsection 2.2.A may not be reborrowed. In connection
with the making of the Term Loans, Company shall deliver
a Notice of Borrowing, and perform in all other relevant
respects, in accordance with subsection 2.1.C. Each Lender
will make the amount of its Term Loan available to Agent,
in same day funds, at the office of Agent located at One
Bankers Trust Plaza, New York, New York, not later than
12:00 noon (New York time) on the Term Loan Funding
Date. Agent shall make the proceeds of such Term Loans
available to Company by causing the aggregate amount of
such Term Loans to be applied to the full extent thereof to
repay the principal amount of the Revolving Loans,
Swingline Loans and Bid Rate Loans outstanding on such
date.
B. Scheduled Payment of Term Loans.
Company agrees to make principal payments in the amount
of the applicable Scheduled Term Loans Principal Payment
on the dates and in the amounts set forth in the definition of
Scheduled Term Loans Principal Payments.
2.3. Interest on the Loans
A. Rate of Interest.
Subject to the provisions of subsection 2.3.F, each Loan
(other than Bid Rate Loans, which shall bear interest as
provided in subsection 2.1.E) shall bear interest on the
unpaid principal amount thereof from the date made
through maturity (whether by acceleration or otherwise) at
a rate determined by reference to the Base Rate, the
Adjusted Certificate of Deposit Rate or the Adjusted
Eurodollar Rate, as the case may be. Except to the extent
that this Agreement specifically provides that certain Loans
are to be made at the Base Rate, the applicable basis for
determining the rate of interest with respect to Term Loans
and Revolving Loans shall be selected by Company
initially at the time a Notice of Borrowing is given pursuant
to subsection 2.1.C (or is deemed to be given pursuant to
subsection 2.4.C) or at the time a Notice of
Conversion/Continuation is given pursuant to subsection
2.3.E. The basis for determining the interest rate with
respect to any Term Loan or Revolving Loan may be
changed from time to time pursuant to subsection 2.3.E. If
on any day a Term Loan or Revolving Loan is outstanding
with respect to which notice has not been delivered to
Agent in accordance with the terms of this Agreement
specifying the basis for determining the rate of interest
then, for that day, that Loan shall bear interest determined
by reference to the Base Rate.
B. Determination of Interest Rate.
As soon as practicable after 10:00 A.M. (New York time)
on each Interest Rate Determination Date, Agent shall
determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the
interest rates that shall apply to CD Rate Loans and
Eurodollar Rate Loans for which interest rates are then
being determined for the applicable Interest Periods and
shall promptly give notice thereof (in writing or by
telephone confirmed in writing) to Company and each
Lender.
Subject to the provisions of subsections 2.3.F and 2.8.F,
Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base
Rate plus the Applicable Base Rate Pricing Margin;
(ii) if a Eurodollar Rate Loan, then at the sum of the
Adjusted Eurodollar Rate plus the Applicable Eurodollar
Rate Pricing Margin; or
(iii) if a CD Rate Loan, then at the sum of the Adjusted
CD Rate plus the Applicable CD Rate Pricing Margin.
On each Pricing Level Calculation Date, commencing with
the first such date to occur after the end of the fiscal quarter
of Company immediately succeeding the Closing Date, the
Pricing Level in effect for the Pricing Period commencing
on such Pricing Level Calculation Date and continuing for
the term of the Pricing Period that begins on such Pricing
Level Calculation Date shall be the applicable Pricing
Level that is determined by reference to the definitions of
Pricing Level I, Pricing Level II and Pricing Level III,
subject to the proviso to the definition of Pricing Level.
Notwithstanding the fact that the actual calculation of the
applicable Pricing Level for a Pricing Period to commence
during the first fiscal quarter of Company s fiscal year may
be performed on a date subsequent to the Pricing Level
Calculation Date occurring in such quarter, such Pricing
Period shall commence on such Pricing Level Calculation
Date. Upon the actual calculation of the applicable Pricing
Level for the Pricing Period commencing during the first
fiscal quarter of Company s fiscal year, adjustments to the
amount of accrued interest shall be made to reflect
retroactive application of the applicable Pricing Level to
the first day of such Pricing Period.
C. Interest Periods for CD Rate Loans and Eurodollar
Rate Loans.
In connection with each CD Rate Loan and Eurodollar
Rate Loan, Company, by giving notice as set forth in
subsection 2.1.C, shall elect an interest period (each an
Interest Period ) to be applicable to such Loan, which
Interest Period (x) in the case of CD Rate Loans, be either a
30, 60, 90 or 180 day period and (y) in the case of
Eurodollar Rate Loans, shall be either a one, two, three or
six month period; provided that:
(i) the initial Interest Period for any Loan shall
commence on the Funding Date of such Loan or on the date
of conversion or continuation of such Loan pursuant to
subsection 2.3.E, as the case may be;
(ii) in the case of immediately successive Interest
Periods, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a
day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day;
(iv) any Interest Period in respect of a Eurodollar Rate
Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (v) of this
subsection 2.3.C, end on the last Business Day of a
calendar month;
(v) no Interest Period with respect to any Revolving
Loan shall extend beyond the Term Loan Funding Date and
no Interest Period with respect to the Term Loan shall
extend beyond the Commitment Termination Date;
(vi) no Interest Period with respect to a particular Loan
shall extend beyond a date on which Company is required
to make a scheduled payment of principal of the Loans
unless the aggregate principal amount of CD Rate Loans
and Eurodollar Rate Loans with Interest Periods expiring
on such date, together with all Base Rate Loans, equals or
exceeds the principal amount required to be paid on the
Loans on such date; and
(vii) there shall be no more than twelve Interest Periods
relating to CD Rate Loans or Eurodollar Rate Loans or any
combination thereof outstanding at any time.
D. Interest Payments.
Subject to the provisions of subsection 2.3.F, interest shall
be payable on the Loans as follows:
(i) interest on each Base Rate Loan shall be payable
in arrears on and to each March 31, June 30, September 30
and December 31, commencing on the first such date to
occur after the Closing Date, and at final maturity; and
(ii) interest on each CD Rate Loan or Eurodollar Rate
Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any
prepayment of that Loan (to the extent accrued on the
amount being prepaid) and at maturity (including final
maturity).
(iii) interest in respect of the unpaid principal amount
of each Bid Rate Loan shall be payable from the date of
incurrence thereof to maturity (whether by acceleration or
otherwise) at the rate or rates per annum specified in the
Bid Rate Loan Quote accepted by Company in accordance
with subsection 2.1.E.(iv).
E. Conversion or Continuation.
Subject to the provisions of subsection 2.8, Company shall
have the option (i) to convert at any time all or any part of
its outstanding Loans (other than Swingline Loans and Bid
Rate Loans) equal to $5,000,000 and integral multiples of
$1,000,000 in excess of that amount, from Loans bearing
interest at a rate determined by reference to one basis to
Loans bearing interest at a rate determined by reference to
an alternative basis or (ii) upon the expiration of any
Interest Period applicable to a CD Rate Loan or a
Eurodollar Rate Loan, to continue all or any portion of such
Loan equal to $5,000,000 and integral multiples of
$1,000,000 in excess of that amount as a CD Rate Loan or
a Eurodollar Rate Loan, as the case may be, and the
succeeding Interest Period(s) of such continued Loan shall
commence on the date of expiration of the Interest Period
of the Loan to be continued; provided, however, that a CD
Rate Loan or a Eurodollar Rate Loan may only be
converted into a Loan bearing interest by reference to an
alternative basis on the expiration date of an Interest Period
applicable thereto; further provided that no outstanding
Loan may be continued as, or be converted into, a CD Rate
Loan or a Eurodollar Rate Loan when any Event of Default
or Potential Event of Default has occurred and is
continuing.
Company shall deliver a Notice of
Conversion/Continuation to Agent no later than 1:00 P.M.
(New York time) at least one Business Day in advance of
the proposed conversion/continuation date in the case of a
conversion to a Base Rate Loan or a CD Rate Loan and at
least three Business Days in advance of the proposed
conversion/continuation date in the case of a conversion to,
or continuation of, a Eurodollar Rate Loan. A Notice of
Conversion/Continuation shall certify (i) the proposed
conversion/continuation date (which shall be a Business
Day), (ii) the amount of the Loan to be
converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of conversion to or
continuation of a CD Rate Loan or a Eurodollar Rate Loan,
the requested Interest Period, and (v) in the case of
conversion to or continuation of a CD Rate Loan or a
Eurodollar Rate Loan, that no Potential Event of Default or
Event of Default has occurred and is continuing. In lieu of
delivering the above-described Notice of
Conversion/Continuation, Company may give Agent
telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.3.E;
provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation
to Agent on or before the proposed conversion/continuation
date. If Company has failed to timely deliver a Notice of
Conversion/Continuation for conversion to, or continuation
of, a CD Rate Loan or a Eurodollar Rate Loan, Company
shall be deemed to have delivered to Agent a Notice of
Conversion/Continuation to convert such CD Rate Loan or
Eurodollar Rate Loan, as the case may be, to a Base Rate
Loan.
Neither Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to
in this subsection 2.3.E that Agent believes in good faith to
have been given by a duly authorized officer or other
person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.3.E,
and upon conversion/continuation in accordance with this
Agreement pursuant to any such telephonic notice,
Company shall have effected a conversion or continuation,
as the case may be, hereunder.
Except as otherwise provided in subsection 2.8, a Notice of
Conversion/Contin- uation for conversion to, or
continuation of, a CD Rate Loan or a Eurodollar Rate Loan
(or telephonic notice in lieu thereof) shall be irrevocable on
and after the related Interest Rate Determination Date, and
Company shall be bound to convert or continue in
accordance therewith.
F. Post-Maturity Interest.
Any principal payments on the Loans not paid when due
and, to the extent permitted by applicable law, any interest
payments on the Loans not paid when due and any fees in
respect of Letters of Credit payable pursuant to subsection
2.5.B not paid when due, in any case whether at stated
maturity, by notice of prepayment, by acceleration or
otherwise, shall thereafter bear interest payable upon
demand at a rate that is 2% per annum in excess of the rate
of interest otherwise payable under this Agreement;
provided that any unpaid principal or, to the extent
permitted by applicable law, interest payments in respect of
the Bid Rate Loans shall bear interest at a rate that is 2%
per annum in excess of the rate of interest borne by Base
Rate Loans.
G. Computation of Interest.
Interest on the Loans and on the fees payable pursuant to
subsection 2.5 shall be computed on the basis of a 360-day
year and the actual number of days elapsed in the period
during which it accrues. In computing interest on any
Loan, the date of the making of the Loan or the first day of
an Interest Period, as the case may be, shall be included and
the date of payment or the expiration date of an Interest
Period, as the case may be, shall be excluded; provided that
if a Loan is repaid on the same day on which it is made, one
day s interest shall be paid on that Loan.
2.4. Letters of Credit
A. Letters of Credit.
In addition to Company requesting that Lenders make
Loans pursuant to subsection 2.1.A Company may request,
in accordance with the provisions of this sub- section 2.4,
that one or more Issuing Lenders issue Letters of Credit for
the account of Company; provided that Company shall not
request that any Lender issue any Letter of Credit if, after
giving effect to such issuance (i) the Total Utilization of
Revolving Loan Commitments would exceed the
Revolving Loan Commitments then in effect, as the amount
available under the Revolving Loan Commitments may be
limited from time to time pursuant to subsection 2.1.A, or
(ii) the Letter of Credit Usage would exceed $25,000,000.
In no event shall Company request that any Letter of Credit
be issued to the extent that Company would be able to
arrange for such letter of credit to be issued pursuant to the
Separate Letter of Credit Facility. The commitment of each
Issuing Lender to issue Letters of Credit pursuant to this
subsection 2.4.A is herein called its Letter of Credit
Commitment and such commitments of the Issuing
Lenders collectively are herein called the Letter of Credit
Commitments . The original amount of the Letter of Credit
Commitment is $25,000,000 and shall expire on the date
occurring three months prior to the Term Loan Funding
Date, after which date no Letter of Credit shall be issued
hereunder. In no event shall any Issuing Lender issue any
Letter of Credit having an expiration date later than the
earlier of (y) the Term Loan Funding Date and (z) the date
which is one year from the date of issuance of such Letter
of Credit; provided that this clause (z) shall not prevent
such Issuing Lender from agreeing that a Letter of Credit
will automatically be extended for a period not to exceed
one year unless such Issuing Lender elects not to extend for
such additional period. Each Letter of Credit issued
pursuant to this subsection 2.4 shall be in a minimum stated
amount of at least $25,000.
Any Existing Letters of Credit issued pursuant to the Old
Credit Agreement and outstanding as of the Closing Date
shall for all purposes of this Agreement be deemed to have
been issued under and pursuant to the terms of this
Agreement.
The issuance of any Letter of Credit in accordance with the
provisions of this subsection 2.4 shall be given effect in the
calculation of the Total Utilization of Revolving Loan
Commitments and shall require the satisfaction of each
condition set forth in subsection 3.1 and 3.3.
Immediately upon the issuance of each Letter of Credit,
Agent shall promptly notify each Lender of such issuance
and each Lender shall be deemed to, and hereby agrees to,
have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and drawings
thereunder in an amount equal to such Lender s Pro Rata
Share (determined by reference to the Revolving Loan
Commitments of the Lenders) of the maximum amount
which is or at any time may become available to be drawn
thereunder.
Each Letter of Credit may provide that the Issuing Lender
may (but shall not be required to) pay the beneficiary
thereof upon the occurrence of an Event of Default and the
acceleration of the maturity of the Loans or, if payment is
not then due to the beneficiary, provide for the deposit of
funds in an amount sufficient to secure payment to the
beneficiary of the Letter of Credit if conditions to such
payment are satisfied, which amount shall be returned to
the Issuing Lender for distribution to Lenders (or, if all
Letters of Credit have been cancelled and all Obligations
shall have been indefeasibly paid in full, to Company) if no
payment to the beneficiary has been made and the final date
available for drawings under the Letter of Credit has
passed. Each payment or deposit of funds by an Issuing
Lender as provided in this paragraph shall be treated for all
purposes of this Agreement as a drawing duly honored by
such Issuing Lender under the related Letter of Credit.
B. Notice of Issuance.
Whenever Company desires to cause the issuance of a
Letter of Credit, Company shall deliver to Agent a Notice
of Request for Letter of Credit no later than 11:00 A M.
(New York time) at least five Business Days in advance of
the proposed date of issuance or such shorter time as may
be agreed to by any Issuing Lender in any particular
instance. The notice shall specify (i) the proposed date of
issuance (which shall be a Business Day), (ii) the stated
amount of the Letter of Credit, (iii) the effective date of the
Letter of Credit, (iv) the expiration date of the Letter of
Credit, (v) the name and address of the beneficiary, and
shall include such other documents or materials as the
Issuing Lender may reasonably request, (vi) the Benefitted
subsidiary or Benefitted Subsidiaries, if any, with respect to
such Letter of Credit and the amount inuring to the benefit
of each such Benefitted Subsidiary, and (vii) the verbatim
text of the proposed Letter of Credit or the proposed terms
and conditions, including a precise description of any
documentation required to be complied with by the
beneficiary which, if complied with by the beneficiary prior
to the expiration date of the Letter of Credit, would require
the Issuing Lender to make payment under the Letter of
Credit; provided that the Issuing Lender, in its reasonable
discretion, may require changes in any such documentation;
provided further that the Issuing Lender shall not be
required to issue any Letter of Credit that by its terms
requires payment thereunder against a conforming draft on
the same business day (under the laws of the jurisdiction of
the Issuing Lender) that such draft is presented if such
presentation is made after 11:00 A.M. in the time zone of
the Issuing Lender on such business day.
As soon as practicable after delivery of such Notice of
Request for Letter of Credit, the Issuing Lender for such
Letter of Credit shall be determined as provided in this
subsection. Promptly upon the issuance or amendment of a
Letter of Credit, Agent shall notify each other Lender of the
issuance or amendment, the Issuing Lender therefor and the
amount of each such other Lender s respective participation
therein determined in accordance with subsection 2.4.D.
Upon receipt by Agent of a notice from Company pursuant
to this subsection 2.4.B requesting the issuance of a Letter
of Credit, in the event Bankers elects to issue such Letter of
Credit, in its sole discretion, Agent shall so notify
Company and Bankers shall be the Issuing Lender with
respect thereto. In the event that Bankers elects not to issue
such Letter of Credit, Bankers shall promptly so notify
Company and Company may request First Chicago to issue
such Letter of Credit. If First Chicago is requested to issue
such Letter of Credit, it shall promptly notify Company and
Agent whether or not, in its sole discretion, it has elected to
issue such Letter of Credit, and it shall be the Issuing
Lender with respect to such Letter of Credit in the event it
elects to issue such Letter of Credit. In the event that both
Bankers and First Chicago shall have declined to issue such
Letter of Credit, notwithstanding the prior election of each
of Bankers and First Chicago not to issue such Letter of
Credit, each of Bankers and First Chicago shall be
obligated to issue a Letter of Credit in a maximum
aggregate amount available for drawing equal to such
Lender s proportionate share (based upon the relative Pro
Rata Shares of such Lenders) of the Letter of Credit
requested by Company and each such Lender shall be an
Issuing Lender with respect to the Letter of Credit issued
by it. Each Issuing Lender which elects to issue a Letter of
Credit shall promptly give written notice to Agent and each
other Lender of the information required under clauses
(i)-(iv) of the first paragraph of this subsection 2.4.B
relating to such Letter of Credit.
C. Payment of Amounts Drawn Under Letters of Credit.
In determining whether to honor any request for drawing
under any Letter of Credit by the beneficiary thereof, the
Issuing Lender shall be responsible only to determine that
the documentation required to be delivered under such
Letter of Credit has been delivered and that it complies on
its face with the requirements of such Letter of Credit. In
the event the Issuing Lender has determined to honor such
a request for drawing, such Issuing Lender shall notify
Company and Agent on or before the date on which such
Issuing Lender intends to honor such drawing, and
Company shall reimburse such Issuing Lender on the day
on which such drawing is honored in an amount in same
day funds equal to the amount of such drawing; provided
that, anything contained in this Agreement to the contrary
notwithstanding (i) unless prior to the close of business of
the Business Day immediately preceding the date of such
drawing (a) Company shall have notified Agent and Issuing
Lender that it intends to reimburse such Issuing Lender for
the amount of such drawing with funds other than the
proceeds of Revolving Loans or (b) Company shall have
delivered a Notice of Borrowing requesting Revolving
Loans in an amount equal to the amount of such drawing,
Company shall be deemed to have delivered a Notice of
Borrowing to Agent requesting Lenders to make Revolving
Loans which are Base Rate Loans on the date on which
such drawing is honored in an amount equal to the amount
of such drawing to be used to reimburse such drawing, and
(ii) Lenders shall, on the date of such drawing, make
Revolving Loans in the amount of such drawing to be made
in accordance with subsection 2.1.A and 2.7.B, the
proceeds of which shall be applied directly by Agent to
reimburse such Issuing Lender for the amount of such
drawing; provided further that, if for any reason proceeds of
Revolving Loans are not received by such Issuing Lender
on such date in an amount equal to the amount of such
drawing, Company shall reimburse such Issuing Lender, on
the Business Day immediately following the date of such
drawing, in an amount in same day funds equal to the
excess of the amount of such drawing over the amount of
such Revolving Loans, if any, which are so received, plus
accrued interest on such amount at the rate set forth in
subsection 2.5.B.(ii).
D. Payment by Lenders.
If Company shall fail to reimburse an Issuing Lender, for
any reason, as provided in subsection 2.4.C (including,
without limitation, by means of the making of Revolving
Loans by Lenders pursuant to the terms of subsection
2.4.C) in an amount equal to the amount of any drawing
honored by such Issuing Lender under a Letter of Credit,
such Issuing Lender shall promptly notify each Lender of
the unreimbursed amount of such drawing and of such
Lender s respective participation therein based on such
Lender s Pro Rata Share. Each Lender shall make available
to Issuing Lender an amount equal to its respective
participation, in same day funds, at the office of such
Issuing Lender specified in such notice, not later than 1:00
P.M. (New York time) on the Business Day after the date
notified by such Issuing Lender. If any Lender fails to make
available to such Issuing Lender the amount of such Lender
s participation in such Letter of Credit as provided in this
subsection 2.4.D, such Issuing Lender shall be entitled to
recover such amount on demand from such Lender together
with interest at the customary rate set by Agent for the
correction of errors among banks for one Business Day and
thereafter at the Base Rate. Nothing in this subsection 2.4.D
shall be deemed to prejudice the right of any Lender to
recover from such Issuing Lender any amounts made
available by such Lender to such Issuing Lender pursuant
to this subsection 2.4.D if it is determined by a court of
competent jurisdiction that the payment with respect to
such Letter of Credit by such Issuing Lender in respect of
which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of such Issuing
Lender. Each Issuing Lender shall distribute to each other
Lender which has paid all amounts payable by it under this
subsection 2.4.D with respect to any Letter of Credit, such
other Lender s Pro Rata Share of all payments received by
such Issuing Lender from Company in reimbursement of
drawings honored by such Issuing Lender under such Letter
of Credit when such payments are received.
E. Obligations Absolute.
The obligation of Company to reimburse each Issuing
Lender for drawings made under the Letters of Credit and
to repay any Revolving Loans made by Lenders pursuant to
and in accordance with subsection 2.4.C and the obligations
of Lenders under subsection 2.4.D shall be unconditional
and irrevocable and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
(ii) the existence of any claim, set-off, defense or other
right which Company or a Lender may have at any time
against a beneficiary or any transferee of any Letter of
Credit (or any persons or entities for whom any such
transferee may be acting), such Issuing Lender, any Lender
or any other Person or, in the case of a Lender, against
Company, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated
transaction (including any underlying transaction between
Company or one of its Subsidiaries and the beneficiary for
which the Letter of Credit was procured);
(iii) any draft, demand, certificate or any other
document presented under any Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any
respect;
(iv) payment by such Issuing Lender under any Letter
of Credit against presentation of a demand, draft or
certificate or other document which does not comply with
the terms of such Letter of Credit;
(v) any adverse change in the condition (financial or
otherwise) of Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan
Document by any Credit Party;
(vii) any other circumstance or happening whatsoever,
which is similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential
Event of Default shall have occurred and be continuing.
F. Indemnification; Nature of Issuing Lenders Duties.
In addition to amounts payable as elsewhere provided in
this subsection 2.4, Company hereby agrees to protect,
indemnify, pay and save harmless each Issuing Lender
from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including
reasonable fees and disbursements of counsel) that such
Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit,
other than as a result of the gross negligence or willful
misconduct of such Issuing Lender or (ii) the failure of
such Issuing Lender to honor a drawing under any Letter of
Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or
omissions herein called Government Acts ). Each Lender,
proportionately to its Pro Rata Share, severally agrees to
indemnify such Issuing Lender to the extent such Issuing
Lender shall not have been reimbursed in accordance with
the terms of the Loan Documents for drawings under any
Letter of Credit, for and against any of the foregoing
claims, demands, liabilities, damages, losses, costs, charges
and expenses to which such Issuing Lender is entitled to
reimbursement under the Loan Documents.
As between Company and each Issuing Lender, Company
assumes all risks of the acts and omissions of, or misuse of
such Letters of Credit by, the beneficiary or beneficiaries of
each Letter of Credit. In furtherance and not in limitation
of the foregoing, such Issuing Lender shall not be
responsible (absent gross negligence or willful misconduct
of such Issuing Lender (as determined by a court of
competent jurisdiction)) for: (i) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with any
Notice of Request for Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) the failure of the beneficiary
of any such Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv)
errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or
of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of
any drawing under such Letter of Credit; and (viii) any
consequences arising from causes beyond the control of
such Issuing Lender, including, without limitation, any
Government Acts, and none of the above shall affect,
impair, or prevent the vesting of any of such Issuing Lender
s rights or powers hereunder.
G. Additional Payments.
If by reason of (a) any change in any applicable law,
regulation, rule, decree or regulatory requirement or any
change in the interpretation or application thereof by any
judicial or regulatory authority or (b) compliance by any
Issuing Lender or any Lender with any direction, request or
requirement (whether or not having the force of law) of any
governmental or monetary authority including, without
limitation, Regulation D:
(i) such Issuing Lender or any Lender shall be subject
to any tax, levy, charge or withholding of any nature or to
any variation thereof or to any penalty with respect to the
maintenance or fulfillment of its obligations under this
subsection 2.4, whether directly or by such being imposed
on or suffered by such Issuing Lender or any Lender;
(ii) any reserve, special deposit, premium, Federal
Deposit Insurance Corporation assessment, capital
adequacy or similar requirement is or shall be applicable,
imposed or modified in respect of any Letters of Credit
issued by such Issuing Lender or participations therein
purchased by any Lender; or
(iii) there shall be imposed on such Issuing Lender or
any Lender any other condition regarding this subsection
2.4, any Letter of Credit or any participation therein;
and the result of the foregoing is to directly or indirectly
increase the cost to such Issuing Lender or any Lender of
issuing, making or maintaining any Letter of Credit or of
purchasing or maintaining any participation therein, or to
directly or indirectly reduce the amount receivable in
respect thereof by such Issuing Lender or any Lender, then
and in any such case such Issuing Lender or such Lender
may, at any time within a reasonable period after the
additional cost is incurred or the amount received is
reduced, notify Company and Agent, and Company shall
pay on demand such amounts as such Issuing Lender or
such Lender may specify to be necessary to compensate
such Issuing Lender or such Lender for such additional cost
or reduced receipt, together with interest on such amount
from the date demanded until payment in full thereof at a
rate equal at all times to the Base Rate plus 2% per annum.
The determination by such Issuing Lender or any Lender,
as the case may be, of any amount due pursuant to this
subsection 2.4.G as set forth in a certificate setting forth the
calculation thereof in reasonable detail, shall, in the absence
of manifest error, be final and conclusive and binding on all
of the parties hereto.
2.5. Fees
A. Commitment Fees.
Company agrees to pay to Agent for distribution to each
Lender in proportion to such Lender s Pro Rata Share of the
Revolving Loan Commitments, commitment fees for the
period from and including the Closing Date, to and
excluding the Term Loan Funding Date, equal to the
average of the daily excess of the Loan Commitments over
the sum of the aggregate principal amount of Revolving
Loans and Swingline Loans outstanding and the Letter of
Credit Usage, multiplied by the Applicable Commitment
Fee Percentage, such commitment fees to be calculated on
the basis of a 360-day year and the actual number of days
elapsed and to be payable quarterly in arrears each March
31, June 30, September 30 and December 31 commencing
on the first such date to occur after the Closing Date, and
on the Commitment Termination Date.
B. Letter of Credit Fees.
Company agrees to pay the following amounts to each
Issuing Lender with respect to each Letter of Credit issued
by such Issuing Lender:
(i) a commission equal to the Applicable Letter of
Credit Fee Percentage multiplied by the maximum amount
available from time to time to be drawn under any Letter of
Credit, payable quarterly in arrears on each March 31, June
30, September 30 and December 31 and upon expiration of
such Letter of Credit and calculated on the basis of a
360-day year and the actual number of days elapsed to be
applied as follows: .1875% of the maximum amount
available under each Letter of Credit shall be distributed to
the Issuing Lender thereof, and the remainder of such
commission shall be distributed to each Lender (including
the Issuing Lenders) in proportion to such Lender s Pro
Rata Share of the Revolving Loan Commitments;
(ii) with respect to drawings made under any Letter of
Credit, interest, payable on demand, on the amount paid by
such Issuing Lender in respect of each such drawing from
the date of the drawing through the date such amount is
reimbursed by Company (including any such
reimbursement derived from the proceeds of Revolving
Loans made pursuant to subsection 2.4.C) at a rate that is at
all times equal to 2% per annum in excess of the rate of
interest otherwise payable under this Agreement for Base
Rate Loans; and
(iii) with respect to the issuance, amendment or
transfer of each Letter of Credit and each drawing made
thereunder (without duplication of the fees payable under
clause (a) above), documentary and processing charges in
accordance with such Issuing Lender s standard schedule
for such charges in effect at the time of such issuance,
amendment, transfer or drawing, as the case may be, or as
otherwise agreed by such Issuing Lender.
Promptly upon receipt by such Issuing Lender of any
amount described in clauses (ii) or (iii) of this subsection
2.5.B with respect to a Letter of Credit, such Issuing Lender
shall distribute to each Lender which has purchased a
participation in such Letter of Credit pursuant to subsection
2.4.A, its Pro Rata Share of such amount.
C. Facility Fees.
Company agrees to pay to Agent, for distribution to each
Lender in proportion to such Lender s Pro Rata Share of (i)
the Revolving Loan Commitments, facility fees for the
period from and including the Closing Date to and
excluding the Term Loan Funding Date, equal to the daily
amount of the Revolving Loan Commitments and (ii) the
Term Loans, facility fees for the period from the Term
Loan Funding Date to but excluding the Commitment
Termination Date, equal to the aggregate principal amount
of the Term Loans outstanding on each day, in either case
multiplied by the Applicable Facility Fee Percentage, such
facility fee to be calculated on the basis of 360-day year
and the actual number of days elapsed and to be payable
quarterly in advance on the Closing Date and on each
March 31, June 30, September 30 and December 31,
commencing on the first such date to occur after the
Closing Date, and on the Commitment Termination Date.
D. Other Fees.
Company agrees to pay to Agent such fees in the amounts
and at the times separately agreed upon between Company
and Agent. Company agrees to pay to Continental Bank
upon its appointment as Bid Rate Loan Agent and Trustee a
fee for services provided by Bid Rate Loan Agent and
Trustee hereunder in the amounts and at the times
separately agreed upon between Company and Continental
Bank.
E. Determination of Applicable Fee Percentage.
On each Pricing Level Calculation Date, commencing with
the first such date to occur after the end of the fiscal quarter
of Company immediately succeeding the Closing Date, the
Pricing Level in effect for the Pricing Period commencing
on such Pricing Level Calculation Date and continuing for
the term of the Pricing Period that begins on such Pricing
Level Calculation Date shall be the applicable Pricing
Level that is determined by reference to the definitions of
Pricing Level I, Pricing Level II and Pricing Level III,
subject to the proviso to the definition of Pricing Level.
Notwithstanding the fact that the actual calculation of the
applicable Pricing Level for a Pricing Period to commence
during the first fiscal quarter of Company s fiscal year may
be performed on a date subsequent to the Pricing Level
Calculation Date occurring in such quarter, such Pricing
Period shall commence on such Pricing Level Calculation
Date. Upon the actual calculation of the applicable Pricing
Level for the Pricing Period commencing during the first
fiscal quarter of Company s fiscal year, adjustments to the
amount of accrued fees shall be made to reflect retroactive
application of the applicable Pricing Level to the first day
of such Pricing Period.
F. HLT Classification Period and HLT Fees.
Agent shall notify Company and Lenders of the
commencement of any HLT Classification Period, and
Company shall pay to Agent for distribution to Lenders in
accordance with their Pro Rata Shares, a fee equal to
1-1/4% of (i) during the Revolving Period, the Revolving
Loan Commitments as in effect on the later of the Closing
Date and the date occurring ninety days prior to the HLT
Classification Date for which such notice was given and (ii)
for the Term Period, the Term Loans outstanding on the
HLT Classification Date for which such notice was given,
which fee shall be due and payable in five equal
installments commencing on the date that is 180 days after
the relevant HLT Classification Date and on each date that
occurs each three months thereafter until paid in full;
provided that no such fee shall be payable at any time that
the Commitments have been terminated and the
Obligations paid in full or if no HLT Classification Period
is in effect. Nothing herein contained shall be construed to
impose on Agent any duty to determine that an HLT
Classification Period has commenced.
2.6. Prepayments and Payments: Reductions in
Commitments
A. Voluntary Prepayments.
Company may, upon not less than one Business Day s
prior written or telephonic notice confirmed in writing to
Agent (which notice Agent will promptly transmit by
telegram, telex or telephone to each Lender), at any time
and from time to time prepay any Loans in whole or in part
in an aggregate minimum amount of $1,000,000 and
integral multiples of $1,000,000 in excess of that amount
(or, with respect to Swingline Loans only, in an aggregate
minimum amount of $100,000); provided, however, that a
Eurodollar Rate Loan or a CD Rate Loan may only be
prepaid on the expiration of the Interest Period applicable
thereto unless Company tenders to Agent at the time of
such prepayment the payment of all amounts required to be
paid by subsection 2.8.B. Company may not prepay any
Bid Rate Loan without the consent of the applicable
Lender. Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in
such notice shall become due and payable on the
prepayment date. During the Revolving Period, Company
may elect to apply such voluntary prepayment to the
outstanding Loans without such prepayment effecting a
reduction of the Revolving Loan Commitments. In the
event that Company does not specify the Loan to which a
prepayment is to be applied, such prepayment shall be
applied to the full extent thereof pro rata to outstanding
Swingline Loans and Revolving Loans that are Base Rate
Loans, then to Eurodollar Rate Loans or CD Rate Loans, as
determined by Agent, and then to cash collateralize
outstanding Letters of Credit. During the Term Period,
such voluntary prepayment shall be applied to prepay
outstanding Term Loans to the full extent thereof, first to
the next two immediately succeeding Scheduled Term
Loans Principal Payments in their respective order of
maturity and then pro rata to the remaining Scheduled Term
Loans Principal Payments.
B. Mandatory Prepayments and Reduction of Revolving
Loan Commitments.
(i) Prepayment Events.
(a) Prepayments and Reductions from Asset Sales.
No later than the second Business Day following the date
of receipt by Company or any of its Subsidiaries of Cash
Proceeds of any Asset Sale (including Cash Proceeds in
respect of principal payments received on promissory notes
received in connection with Asset Sales occurring on or
after the date hereof), Company shall prepay the Loans in
an amount equal to the Net Cash Proceeds of such Asset
Sale that constitute Aggregate Excess Proceeds.
Concurrently with the making of any prepayment or
reduction pursuant to this subsection 2.6.B.(i)(a), Company
shall deliver an Officers Certificate demonstrating the
derivation of Net Cash Proceeds from the gross sales price
of the correlative Asset Sale. In the event that Company
shall, at any time after receipt of Cash Proceeds of any
Asset Sale requiring a prepayment or commitment
reduction pursuant to this subsection 2.6.B.(i)(a), determine
that the prepayments and/or Commitment reductions
previously made in respect of such Asset Sale were in an
aggregate amount less than required by the terms of this
subsection 2.6.B.(i)(a), Company shall promptly make an
additional prepayment of the Loans and reduce the
Revolving Loan Commitments and cash collateralize
outstanding Letters of Credit) in an amount equal to the
amount of any such deficit, and Company shall
concurrently therewith deliver an Officers Certificate
demonstrating the derivation of the additional Net Cash
Proceeds resulting in such deficit.
(b) Prepayments and Reductions Due to Insurance
Proceeds. No later than the fifth Business Day following
the date of receipt by Company or any of its Subsidiaries of
any Insurance Proceeds or Condemnation Proceeds that
constitute Aggregate Excess Proceeds, Company shall
prepay the Loans in an amount equal to the aggregate
amount of such Insurance Proceeds or Condemnation
Proceeds that have not then been applied to reimburse
Company or its Subsidiaries for investments previously
made in corresponding Productive Assets, in the manner
specified in subsection 2.6.B.(ii)(a).
(c) Prepayments Due to Reductions of Revolving
Loan Commitments. Company shall make prepayments of
Revolving Loans and Swingline Loans so that the Total
Utilization of Revolving Loan Commitments shall not at
any time exceed the Revolving Loan Commitments then in
effect.
(ii) Application of Certain Prepayments and Reductions
of Revolving Loan Commitments.
(a) Application by Type of Loans and Order of
Maturity. Amounts prepaid pursuant to subsection
2.6.B.(i)(a)-2.6.B.(i)(b) shall be applied as follows: during
the Revolving Period, any such prepayment shall be applied
first, to the full extent thereof to outstanding Revolving
Loans that are Base Rate Loans, second to the full extent
thereof to Eurodollar Rate Loans or CD Rate Loans, third
to the full extent thereof to Swingline Loans, fourth to the
full extent thereof to prepay or cash collateralize Bid Rate
Loans (at the election of the Lenders who have made such
Bid Rate Loans), and fifth to the full extent thereof to cash
collateralize outstanding Letters of Credit; and during the
Term Period, any such prepayment shall be applied to
prepay Term Loans to the full extent thereof, first to the
next two immediately succeeding Scheduled Term Loans
Principal Payments in their respective order of maturity and
then pro rata to the remaining Scheduled Term Loans
Principal Payments; provided that, following an
acceleration of the Obligations pursuant to Section 7, and
until such acceleration may have been rescinded or
annulled, all such prepayments shall be applied pro rata to
the outstanding Loans and then to cash collateralize Letters
of Credit.
(b) Application to Principal and Interest of Loans.
All prepayments shall include payment of accrued interest
on the principal amount so prepaid and shall be applied to
the payment of interest before application to principal. Any
prepayment shall be applied first to Base Rate Loans to the
full extent thereof before application to CD Rate Loans or
Eurodollar Rate Loans.
C. Manner and Time of Payment.
All payments by Company of principal, interest,
reimbursements, fees and other Obligations hereunder and
under the Notes shall be made without defense, set-off or
counterclaim and in same day funds and delivered to Agent
not later than 2:00 p.m. (New York time) on the date due at
its office located at One Bankers Trust Plaza, New York,
New York for the account of Lenders; funds received by
Agent after that time on such due date shall be deemed to
have been paid on the next succeeding Business Day.
Company hereby authorizes Agent to charge its accounts
with Agent in order to cause timely payment to be made to
Agent of all principal, interest, reimbursements, fees and
expenses due hereunder (subject to sufficient funds being
available in its respective accounts for that purpose).
D. Apportionment of Payments.
Aggregate principal and interest payments shall be
apportioned among all out- standing Loans (other than
Swingline Loans and Bid Rate Loans) and fees to which
such payments relate, in each case proportionately to
Lenders respective Pro Rata Shares. Reimbursement
payments in respect of Letters of Credit shall be paid over
by Agent to the Issuing Lender who issued the respective
Letter of Credit. Agent shall promptly distribute to each
Lender at its primary address set forth below its name on
the appropriate signature page hereof or such other address
as such Lender may request, its Pro Rata Share of all such
payments received by Agent and the commitment fees and
compensation amounts of such Lender when received by
Agent pursuant to subsection 2.5. Notwithstanding the
foregoing provisions of this subsection 2.6.D if, pursuant to
the provisions of subsection 2.8, any Notice of Borrowing
or Notice of Conversion/Continuation is withdrawn as to
any Affected Lender or if any Affected Lender makes Base
Rate Loans in lieu of its Pro Rata Share of Eurodollar Rate
Loans, Agent shall give effect thereto in apportioning
payments received thereafter.
E. Payments on Business Days.
Whenever any payment to be made hereunder or under
the Notes shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall
be included in the computation of the payment of interest
hereunder or under the Notes or of the commitment and
other fees hereunder, as the case may be.
F.Notation of Payment.
Each Lender agrees that before disposing of any Loan
recorded for such Lender s benefit in the Register, or any
part thereof (other than by granting participations therein),
such Lender will make a notation in such Lender s internal
register of all Loans made in respect thereof and principal
payments previously made thereon and of the date to which
interest thereon has been paid, and will notify Company
and Agent of the name and address of the transferee of such
Loan or portion thereof; provided that the failure to make
(or any error in the making of) a notation of any Loan or to
notify Company and Agent of the name and address of such
transferee shall not limit or otherwise affect the obligation
of Company hereunder with respect to any Loan and
payments of principal or interest on any such Loan.
G. Voluntary Reductions of Revolving Loan
Commitments.
Company shall have the right, at any time and from time to
time, to terminate in whole or permanently reduce in part,
without premium or penalty, the Revolving Loan
Commitments in an amount up to the amount by which the
Revolving Loan Commitments exceed the Total Utilization
of Revolving Loan Commitments at the time of such
proposed termination or reduction.
Company shall give not less than one Business Day s prior
written notice to Agent designating the date (which shall be
a Business Day) of such termination or reduction and the
amount of any partial reduction. Promptly after receipt of a
notice of such termination or partial reduction, Agent shall
notify each Lender of the proposed termination or
reduction. Such termination or reduction of the Revolving
Loan Commitments shall be effective on the date specified
in Company s notice and shall reduce the Revolving Loan
Commitment of each Lender proportionately to its
applicable Pro Rata Share. Any such partial reduction of
the Revolving Loan Commitments shall be in an aggregate
minimum amount of $1,000,000, and integral multiples of
$500,000 in excess of that amount.
H. Mandatory Reductions of Revolving Loan
Commitments.
The Revolving Loan Commitments shall be permanently
reduced on each date that Company is required to make
mandatory prepayments of Loans (or would be required to
prepay Loans if Loans were outstanding) pursuant to
subsection 2.6.B in the full amount of the Net Cash
Proceeds, Insurance Proceeds or Condemnation Proceeds
received by Company or any of its Subsidiaries in the
amount that would be required to be applied to repay Loans
if Loans in at least such amount were outstanding. To the
extent that, as of any date of determination, Letter of Credit
Usage exceeds the Revolving Loan Commitments then in
effect, Company shall use its best efforts to obtain such
substitute letters of credit and surrender to the Issuing
Lenders thereof for cancellation the Letters of Credit being
replaced, as may be necessary to reduce Letter of Credit
Usage to an amount not in excess of the Revolving Loan
Commitments. In the event that Company is unable to
arrange for such substitution and cancellation of Letters of
Credit on or before a date of determination, Company shall
cash collateralize the Letters of Credit in an amount not less
than the difference between the Revolving Loan
Commitments and the Letter of Credit Usage.
2.7. Use of Proceeds
A. Term Loans.
The proceeds of the Term Loans shall be applied by
Company to repay in full the principal amount of all Loans
made pursuant to the Revolving Loan Commitments
outstanding on the Term Loan Funding Date.
B. Revolving Loans Swingline Loans and Bid Rate
Loans.
The proceeds of the Revolving Loans made on the Closing
Date shall be used to repay the obligations of Company and
its Subsidiaries arising under the Old Credit Agreement.
The proceeds of the Revolving Loans, the Swingline Loans
and the Bid Rate Loans shall also be used, and Company
shall cause such proceeds to be used, only for Company s
general corporate purposes, which may include the
repayment of the Swingline Loans pursuant to subsection
2.1.B, the payment of the Bid Rate Loans, the
reimbursement to any Issuing Lender of any amounts
drawn under any Letters of Credit issued by such Issuing
Lender as provided in subsection 2.4.D the payment of
fees, costs and expenses payable by Company pursuant to
the Old Credit Agreement and this Agreement, the making
of intercompany loans to Company s Subsidiaries for their
own general corporate purposes and the repurchase from
the holders thereof of any Commercial Paper.
C. Letters of Credit.
Letters of Credit shall be issued solely for the purposes
specified in the definition of Letters of Credit. D. Margin
Regulations.
No portion of the proceeds of any borrowing under this
Agreement shall be used by Company or any of its
Subsidiaries in any manner that might cause the borrowing
or the application of such proceeds to violate Regulation G,
Regulation U, Regulation T, or Regulation X of the Board
of Governors of the Federal Reserve System or any other
regulation of the Board or to violate the Exchange Act, in
each case as in effect on the date or dates of such borrowing
and such use of proceeds.
E. Benefits to Subsidiaries.
In consideration of the issuance of the Subsidiary
Guaranties, Company agrees to make certain of the benefits
of the Revolving Loans, Bid Rate Loans, Swingline Loans
and Letters of Credit available to the Subsidiaries of
Company executing and delivering such Subsidiary
Guaranties.
2.8. Special Provisions Governing CD Rate Loans and
Eurodollar Rate Loans
Notwithstanding any other provision of this Agreement to
the contrary, the following provisions shall govern with
respect to CD Rate Loans and Eurodollar Rate Loans as to
the matters covered:
A. Increased Costs, Illegality, etc.
(i) In the event that any Lender, including Agent, shall
have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all
parties hereto but, with respect to clauses (a) and (b)(y)
below, shall be made only after consultation with Company
and Agent):
(a) on any date for determining the Adjusted
Eurodollar Rate for any Interest Period that, by reason of
any changes arising on or after the date of this Agreement
affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Adjusted
Eurodollar Rate so that the determined rate will not
adequately and fairly reflect the costs of the Lender making
the relevant Eurodollar Rate Loan; or
(b) at any time, that such Lender shall incur
increased costs or reductions in the amounts or in the rate
of return received or receivable hereunder with respect to
any Loan bearing interest by reference to the Adjusted
Eurodollar Rate because of (x) any change since the date of
this Agreement in any applicable law, governmental rule,
regulation, guideline or order whether or not having the
force of law (or in the interpretation or administration
thereof and including the introduction of any new law or
governmental rule, regulation, guideline or order) (such as,
for example, but not limited to, a change in official reserve
requirements, but, in all events, excluding reserves required
under Regulation D to the extent included in the
computation of the Adjusted Eurodollar Rate); (y) any
other circumstances affecting such Lender, the interbank
Eurodollar market or the position of such Lender in such
market and/or (z) the maintenance of reserves not reflected
in the determination of the Adjusted Eurodollar Rate, as the
case may be; or
(c) at any time, that the making or continuance of
any Loan has become unlawful as a result of compliance by
such Lender in good faith with any law, governmental rule,
regulation, guideline or order (or would conflict with any
such governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply
therewith would not be unlawful), or has become
impracticable as a result of a contingency occurring after
the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Lender on such date may
give notice (by telephone, confirmed in writing) to
Company and to Agent of such determina- tion (which
notice Agent shall promptly transmit to each of the other
Lenders). Thereafter (x) in the case of clause (a) above,
Eurodollar Rate Loans shall no longer be available until
such time as Agent notifies Company and Lenders that the
circumstances giving rise to such notice by Agent no longer
exist, and any Notice of Borrowing or Notice of
Conversion/Continuation pursuant to subsections 2.1.B or
2.3.E respectively, given by Company with respect to such
Loans which have not yet been incurred shall be deemed
rescinded by Company, (y) in the case of clause (b) above,
Company shall pay to such Lender, upon written demand
therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating,
interest or otherwise as such Lender shall determine) as
shall be required to compensate such Lender for such
increased costs or reductions in amounts receivable
hereunder (a written notice as to the additional amounts
owed to such Lender, showing the basis for the calculation
thereof, submitted to Company by such Lender shall,
absent manifest error, be final and conclusive and binding
upon all parties hereto) and (z) in the case of clause (c)
above, Company shall take one of the actions specified in
subsection 2.8.A.(ii) as promptly as possible and, in any
event, within the time period required by law.
(ii) At any time that any Loan is affected by the
circumstances described in subsection 2.8.A (an Affected
Loan ), Company may (and in the case of an Affected Loan
pursuant to subsection 2.8.A.(i)(c) shall) either (a) if the
Affected Loan is then being made pursuant to a Notice of
Borrowing or being converted or continued pursuant to a
Notice of Conversion/Continuation, cancel said Notice of
Borrowing or Notice of Conversion/Continuation, as the
case may be, by giving Agent telephonic notice (confirmed
promptly in writing) thereof on the same date that
Company was notified by a Lender pursuant to subsection
2.8.A, or (b) if the Affected Loan is then outstanding, upon
at least three Business Days notice to Agent, require the
Lender (the Affected Lender ) who has made such
Affected Loan to convert each such Affected Loan into a
Base Rate Loan; provided that if more than one Lender is
affected at any time, then all Affected Lenders must be
treated in the same manner pursuant to this subsection
2.8.A.(ii).
B. Compensation.
Company shall compensate each Lender, upon written
request to Company by such Lender (which request shall
set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including,
without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its CD
Rate Loans or Eurodollar Rate Loans and any loss, expense
or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds) such Lender
may sustain: (i) if for any reason (other than a default by
such Lender) a borrowing of any CD Rate Loans or
Eurodollar Rate Loan does not occur on a date specified
therefor in a Notice of Borrowing, a Notice of
Conversion/Continuation (whether or not withdrawn by
Company or deemed withdrawn pursuant to subsections
2.8.A) or a telephonic request for borrowing or
conversion/continuation or a successive Interest Period
does not commence after notice therefor is given pursuant
to subsection 2.3.E, (ii) if any repayment or conversion of
any of its CD Rate Loans or Eurodollar Rate Loans occurs
on a date that is not the last day of an Interest Period
applicable to such Loan, (iii) if any repayment of any of its
CD Rate Loans or Eurodollar Rate Loans is not made on
any date specified in a notice of repayment given by
Company, or (iv) as a consequence of (y) any other default
by Company to repay its CD Rate Loans or Eurodollar Rate
Loans when required by the terms of this Agreement or (z)
an election made pursuant to subsection 2.8.A.
C. Eurodollar Rate Taxes and Tax Withholding.
Promptly upon notice from any Lender to Company,
Company will pay, prior to the date on which penalties
attach thereto, all present and future income, stamp and
other taxes, levies, or costs and charges whatsoever
imposed, assessed, levied or collected on or in respect of a
Loan solely as a result of the interest rate being determined
by reference to the Adjusted Eurodollar Rate and/or the
provisions of this Agreement relating to the Adjusted
Eurodollar Rate and/or the recording, registration,
notarization or other formalization of any thereof and/or
any payments of principal, interest or other amounts made
on or in respect of a Loan when the interest rate is
determined by reference to the Adjusted Eurodollar Rate
(all such taxes, levies, costs and charges being herein
collectively called Eurodollar Rate Taxes ), without
duplication of such amounts reflected in the calculation of
the Adjusted Eurodollar Rate performed in accordance with
the definition thereof contained herein; provided that
Eurodollar Rate Taxes shall not include: taxes imposed on
or measured by the overall net income of such Lender
(whether gross or net income) by the United States of
America or any political subdivision or taxing authority
thereof or therein, or taxes on or measured by the overall
income of any foreign branch, operation or subsidiary of
such Lender (whether gross or net income) by any foreign
country or subdivision thereof in which such branch,
operation or subsidiary is doing business or any
withholding taxes imposed by the United States of America
with respect to the payment of interest. Company shall also
pay such additional amounts equal to increases in taxes
payable by such Lender described in the foregoing proviso
which increases are attributable to payments made by
Company described in the immediately preceding sentence
or this sentence. Promptly after the date on which payment
of any such Eurodollar Rate Tax is due pursuant to
applicable law, Company will, at the request of such
Lender, furnish to such Lender evidence, in form and
substance satisfactory to such Lender, that Company have
met their obligations under this subsection 2.8.C.
Company will indemnify each Lender against, and
reimburse each Lender on demand for, any Eurodollar Rate
Taxes, as determined by such Lender in its good faith
discretion. Such Lender shall provide Company with
appropriate receipts for any payments or reimbursements
made by Company pursuant to this clause (ii) of subsection
2.8.C. Notwithstanding the foregoing, Company shall be
entitled, to the extent it is required to do so by law, to
deduct or withhold (and shall not be required to make
payments as otherwise required in this subsection on
account of such deductions or withholding) income or other
similar taxes imposed by the United States of America from
interest, fees or other amounts payable hereunder for the
account of any Lender other than a Lender (i) who is a
domestic corporation (as such term is defined in Section
7701 of the Internal Revenue Code of 1986, as amended)
for federal income tax purposes or (ii) who has the
Prescribed Forms on file with Company for the applicable
year to the extent deduction or withholding of such taxes is
not required as a result of the filing of such Prescribed
Forms; provided that if Company shall so deduct or
withhold any such taxes, it shall provide a statement to
Agent and such Lender setting forth the amount of such
taxes so deducted or withheld, the applicable rate and any
other information or documentation which such Lender
may reasonably request for assisting such Lender to obtain
any allowable credits or deductions for the taxes so
deducted or withheld in the jurisdiction or jurisdictions in
which such Lender is subject to tax. Company agrees to
indemnify any Lender referred to in the previous sentence
who has the Prescribed Forms on file with Company (but in
respect of which, despite the filing of such Prescribed
Forms, deduction or withholding of taxes is required) for
such taxes referred to above other than taxes of the type
excluded from the definition of Eurodollar Rate Taxes in
such amounts as may be necessary so that such Lender
receives payment of all amounts due hereunder as provided
for herein, after giving effect to the tax effect of all such
deductions and withholding.
D. Booking of Eurodollar Rate Loans.
Any Lender may make, carry or, provided that such
transfer will not result in increased cost to Company under
this subsection 2.8, transfer Eurodollar Rate Loans at, to, or
for the account of, any of its branch offices or the office of
an Affiliate of such Lender; provided that each Lender
agrees that upon the occurrence of any event giving rise to
the operation of subsections 2.8.A.(i)(b) or 2.8.A.(i)(c) with
respect to such Lender, such Lender will if so requested by
Company use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a
different lending office for any Affected Loans with the
objective of avoiding the consequence of the event giving
rise to the operation of such subsections, but only if, in the
sole judgment of such Lender, such designation would not
be otherwise disadvantageous to such Lender. Nothing in
this proviso shall affect or postpone any of the obligations
of Company or the rights of any Lender pursuant to
subsections 2.8.A or 2.8.C, and Company hereby agrees to
pay all expenses incurred by any Lender in designating and
using another lending office pursuant to this proviso.
E. Assumptions Concerning Funding of CD Rate Loans
and Eurodollar Rate Loans.
Calculation of all amounts payable to a Lender under this
subsection 2.8 shall be made as though such Lender had
actually funded its relevant CD Rate Loan through the
issuance of a certificate of deposit by one of its domestic
offices bearing interest by reference to the Adjusted
Certificate of Deposit Rate in an amount equal to the
amount of the CD Rate Loan and having a maturity
comparable to the relevant Interest Period or had funded its
relevant Eurodollar Rate Loan through the purchase of a
Eurodollar deposit bearing interest by reference to the
Adjusted Eurodollar Rate in an amount equal to the amount
of the Eurodollar Rate Loan and having a maturity
comparable to the relevant Interest Period and through the
transfer of such Eurodollar deposit from an offshore office
of such Lender to a domestic office of such Lender in the
United States of America, as the case may be; provided,
however, that each Lender may fund each of its CD Rate
Loans and Eurodollar Rate Loans in any manner it sees fit
and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection 2.8.
F. CD Rate Loans and Eurodollar Rate Loans After
Default.
After the occurrence of and during the continuance of a
Potential Event of Default or Event of Default, Company
may not elect to have a Loan be made or maintained as, or
converted to, a CD Rate Loan or a Eurodollar Rate Loan
after the expiration of any Interest Period then in effect for
such Loan.
G. Replacement Lender
In the event Company becomes obligated to pay any
material additional amounts to any Lender pursuant to
subsections 2.8.A.(i)(b), 2.8.C or 2.9, or it becomes illegal
for any Lender to continue to fund or to make Eurodollar
Loans pursuant to subsection 2.8.A.(i)(c), as a result of any
event or condition described in any such subsection, then,
unless such Lender has theretofore taken steps to remove or
cure, and has removed or cured, the conditions creating the
cause for such obligation to pay such additional amounts or
for such illegality, Company may designate a substitute
lender acceptable to Agent (such lender herein called a
Replacement Lender ) to purchase such Lender s rights and
obligations hereunder, without recourse to or warranty by,
or expense to, such Lender, for a purchase price equal to
the outstanding principal amounts payable to such Lender
hereunder, plus any accrued and unpaid interest on such
amount and accrued and unpaid fees in respect of Lender s
Commitment. Upon such purchase by Replacement Lender
and payment of all other amounts owing to the Lender
being replaced hereunder, such Lender shall no longer be a
party hereto or have any rights or obligations hereunder,
and the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder.
2.9. Capital Adequacy Adjustment
If any Lender shall have determined that the adoption or
effectiveness, after the date hereof, of any applicable law,
rule or regulation (or any provision thereof), regarding
capital adequacy, or any change therein or any change 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 Lender (or its applicable lending office)
with any request or directive regarding capital adequacy
(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 Lender
s capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such
Lender could have achieved but for such adoption,
effectiveness, change or compliance (taking into
consideration such Lender s policies with respect to capital
adequacy) by an amount deemed by such Lender to be
material, then from time to time, within fifteen days after
demand (given in writing or by telephone and confirmed in
writing) by such Lender (with a copy to Agent), Company
shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such
reduction. Each Lender, upon determining in good faith
that any additional amounts will be payable pursuant to this
subsection 2.9, will give prompt written notice thereof to
Company, which notice shall set forth the basis of the
calculation of such additional amounts, although the failure
to give any such notice shall not release or diminish any
obligation of Company to pay additional amounts under
this subsection 2.9.
2.10. Pledge and Guaranties
To secure the full performance of the Obligations,
Company shall grant to Agent on behalf of Lenders a duly
perfected, first priority Lien on all shares of capital stock
now owned or hereafter acquired by Company in Easco (to
be held until Easco delivers to Agent its duly executed
Subsidiary Guaranty in accordance with subsection 5.7,
whereupon the pledge will be terminated) and each
Guarantor shall have executed and delivered to Agent on
behalf of Lenders, its Subsidiary Guaranty.
2.11. Additional Lenders
By due execution and delivery of a written instrument
acceptable to and signed by Company, Agent and the
financial institution party thereto, such financial institution
( Additional Lender ) may become a party to this
Agreement and become a Lender for all purposes hereof
and become entitled to all benefits and rights and subject to
all duties and obligations hereunder and the other Loan
Documents to the same extent as if it had executed copies
hereof; provided that the amount of the Commitments of
such Additional Lender shall be $15,000,000. Agent shall
give written notice of such Additional Lender becoming a
Lender hereunder to all other parties hereto reasonably
promptly after such written instrument becomes effective
and shall enclose therewith a conformed copy of such
written instrument, which shall set forth notice address
information of the type appearing on the signature pages
hereof. Upon the addition of the Additional Lender and the
increase of the aggregate amount of the Commitments, the
Pro Rata Share of each Lender shall adjust accordingly.
SECTION 3.
CONDITIONS TO LOANS AND LETTERS OF
CREDIT
The effectiveness of this Agreement and the obligations of
Lenders to make Loans and of Issuing Lenders to issue
Letters of Credit are subject to the satisfaction of all of the
following conditions.
3.1. Conditions to Effectiveness of this Agreement
The effectiveness of this Agreement is subject to prior or
concurrent satisfaction of the following conditions:
A. Company Documents.
On or before the Closing Date, Company shall deliver or
cause to be delivered to Lenders (or to Agent for Lenders
with sufficient originally executed copies, where
appropriate, for each Lender and its counsel) the following,
each, unless otherwise noted, dated the Closing Date:
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the state of
its incorporation and each other state in which it is qualified
as a foreign corporation to do business, in each case to be
dated a recent date prior to the Closing Date and to be
supplemented by a bring-down telegram from the
respective Secretary of State;
(ii) Copies of its bylaws, certified as of the Closing
Date by its corporate secretary or an assistant secretary;
(iii) Resolutions of its board of directors approving
and authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents, in form and
substance satisfactory to Agent and its counsel, certified as
of the Closing Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of its
officers executing this Agreement and the other Loan
Documents to which it is a party;
(v) Executed originals of this Agreement and the other
Loan Documents to which it is a party; and
(vi) Such other documents as Agent may reasonably
request.
B. Delivery of Subsidiary Documents.
On or before the Closing Date, each of the Material
Subsidiaries shall have delivered to Lenders (or to Agent
for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) each,
unless otherwise noted, dated as of the Closing Date:
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary
of State of the state of its incorporation and each state in
which it has material operations in each case dated a recent
date prior to the Closing Date;
(ii) Copies of its bylaws, certified as of the Closing
Date by its corporate secretary or an assistant secretary;
(iii) Resolutions of its board of directors approving
and authorizing the execution, delivery and performance of
each Loan Document to which it is a party, in form and
substance satisfactory to Agent and its counsel, each
certified as of the Closing Date by its corporate secretary or
an assistant sec- retary;
(iv) Signature and incumbency certificates of its
officers executing each Loan Document to which it is a
party;
(v) Executed copies of each Loan Document to which
it is a party; and
(vi) Such other documents as Agent may reasonably
request.
C. Delivery of Compliance Certificate.
Company shall have delivered to Agent a Compliance
Certificate as at the most recently ended fiscal quarter of
Company, substantially in the form of Exhibit VI annexed
hereto, dated as of the Closing Date in form and substance
satisfactory to Agent.
D. Fees.
Company shall have paid to Agent for distribution (as
appropriate) to Agent and Lenders the fees payable on the
Closing Date, together with all fees and expenses payable
pursuant to subsection 9.2.
E. Opinions of Credit Parties Counsel.
Lenders shall have received originally executed copies of
one or more favorable written opinions of Skadden, Arps,
Slate, Meagher & Flom, counsel for the Credit Parties, in
form and substance reasonably satisfactory to Agent and its
counsel, dated as of the Closing Date, and setting forth
substantially the matters in the opinions designated in
Exhibit VIII annexed hereto, and as to such other matters as
Agent or Requisite Lenders may reasonably request.
F. Opinions of Agent s Counsel.
Lenders shall have received an originally executed copy of
one or more favorable written opinions of O Melveny &
Myers, dated as of the Closing Date, substantially in the
form of Exhibit IX annexed hereto.
G. No Action or Injunction.
No litigation, inquiry or other action and no injunction or
restraining order shall be pending or threatened with respect
to the making of the Loans hereunder which Requisite
Lenders shall reasonably determine could have a Material
Adverse Effect.
H. No Material Adverse Effect.
Nothing shall have occurred since the date of the Financial
Statements, and no fact or condition not previously known
has come to the attention of any Lender, that could, in the
reasonable determination of Requisite Lenders, have a
material adverse effect on the business, property, assets,
liabilities, condition (financial or otherwise), operations or
results of operations of the Credit Parties, impair the ability
of any Credit Party to perform its respective Obligations, or
impair the ability of Agent or Lenders to enforce the
Obligations.
I. Representations and Warranties; Performance of
Agreements.
Each Credit Party shall have delivered to Agent an Officers
Certificate in form and substance satisfactory to Agent to
the effect that the representations and warranties contained
in Section 4 hereof pertaining to such Credit Parties are
true, correct and complete in all material respects on and as
of the Closing Date to the same extent as though made on
and as of that date and that each such Credit Party shall
have performed in all material respects all of its respective
obligations which this Agreement provides shall be
performed on or before the Closing Date except as
otherwise disclosed to and agreed to in writing by Agent
and Requisite Lenders.
J. Compliance with Laws.
Agent shall have been provided with satisfactory evidence
that Company and its Subsidiaries are in compliance with
all applicable laws, rules, regulations and orders of any
federal, state or local governmental authority, including,
without limitation, all Environmental Laws, the
non-compliance with which could have a Material Adverse
Effect.
K. Completion of Proceedings.
All corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and
all documents incidental thereto not previously found
acceptable by Agent, acting on behalf of Lenders, and its
counsel shall be satisfactory in form and substance to Agent
and such counsel, and Agent and its counsel shall have
received all such counterpart originals or certified copies of
such documents as Agent may reasonably request.
L. Old Credit Agreement.
All action shall have been taken as, in the sole judgment of
Agent and its counsel or Requisite Lenders, may be
necessary or desirable to terminate the Old Credit
Agreement and the commitments thereunder, and the
guaranties, security agreements, pledge agreements,
mortgages, deeds of trust, cash collateral agreements,
financing statements and all other agreements, documents
and instruments entered into in connection therewith,
including, without limitation, the payment of all obligations
arising under the Old Credit Agreement simultaneously
with the making of the initial Loans hereunder, the
termination in writing by Company of the commitments
thereunder and the release of all collateral and guaranties
held therefor.
3.2. Conditions to Letters of Credit
The obligation of the Issuing Lenders to issue any Letter of
Credit is, in addition to the conditions precedent specified
in subsection 3.3, subject to Agent having received on or
before the date of issuance of such Letter of Credit in
accordance with the provisions of subsection 2.4.B, a
Notice of Request for Letter of Credit and all other
information specified in subsection 2.4.B, and such other
documents as such Issuing Lender may reasonably require
in connection with the issuance of such Letter of Credit.
3.3. Conditions to All Loans and Letters of Credit
The obligations of Lenders to make Revolving Loans,
Swingline Loans, Bid Rate Loans and Term Loans (which
shall not include conversions or continuations of existing
Loans pursuant to subsection 2.3.E or 2.8 or the conversion
to Term Loans of Revolving Loans outstanding on the
Term Loan Funding Date, but which shall include the
portion of such Term Loans the proceeds of which are to be
applied to repay Bid Rate Loans or Swingline Loans) and
the obligation of each Issuing Lender to issue a Letter of
Credit on each Funding Date are subject to the following
further conditions precedent:
A. Agent or Bid Rate Loan Agent, as the case may be,
shall have received, in accordance with the provisions of
subsection 2.1.C, 2.1.E.(ii) or 2.4.B, as the case may be,
before that Funding Date, an originally executed Notice of
Borrowing, Bid Rate Loan Quote Request or Notice of
Request for Letter of Credit, as the case may be, in each
case signed by the chief executive officer, the chief
financial officer or the comptroller of Company or by any
executive officer of Company designated by any of the
above-described officers on behalf of Company in writing
delivered to Agent.
B. As of such Funding Date:
(i) The representations and warranties contained herein
shall be true, correct and complete in all material respects
on and as of such Funding Date to the same extent as
though made on and as of that date except those that by
their terms specifically relate only to an earlier date, which
shall have been accurate as of such date;
(ii) No event shall have occurred and be continuing or
would result from the consummation of the borrowing
contemplated by such Notice of Borrowing or the issuance
of such Letter of Credit that would constitute an Event of
Default or a Potential Event of Default (other than the
failure to reimburse the Issuing Lender for a drawing under
a Letter of Credit in the case of a Notice of Borrowing
made to request Revolving Loans the proceeds of which
will be applied directly by Agent to reimburse such Issuing
Lender for the amount of such unpaid drawing);
(iii) Each Credit Party shall have performed in all
material respects all agreements and satisfied all conditions
that this Agreement provides shall be performed by it on or
before that Funding Date;
(iv) No order, judgment or decree of any court,
arbitrator or govern- mental authority shall purport to
enjoin or restrain any Lender from making the Loans or the
Issuing Lender from issuing the Letter of Credit;
(v) Not more than twenty-five percent of the value of
the assets of Company, or of Company and its Subsidiaries
on a consolidated basis, shall constitute Margin Stock. The
making of the Loans or the issuing of the Letter of Credit
requested on such Funding Date shall not violate
Regulation G, Regulation T, Regulation U or Regulation X
of the Board of Governors of the Federal Reserve System
and no part of the proceeds of any Loan or Letter of Credit
will be used to purchase or carry any Margin Stock in
violation of Regulation U or to extend credit for the
purpose of purchasing or carrying any Margin Stock in
violation of Regulation U; and
(vi) There shall not be pending or, to the knowledge of
Company, threatened, any action, suit, proceeding,
governmental investigation or arbitration against or
affecting any Credit Party or any property of any Credit
Party that has not been disclosed by Company in writing
pursuant to subsection 4.6 or 5.1.I prior to the making of
the most recent preceding Loans (or, in the case of the
initial Loans, prior to the execution of this Agreement) or
the issuing of the most recent Letter of Credit (or, in the
case of the initial Letter of Credit, prior to the execution of
this Agreement) and there shall have occurred no
development not so disclosed in any such action, suit,
proceeding, governmental investigation or arbitration so
disclosed, that, in either event, in the opinion of Requisite
Lenders, would be expected to have a Material Adverse
Effect. No injunction or other restraining order shall have
been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed
with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the
performance of this Agreement or the making of Loans or
the issuing of a Letter of Credit hereunder.
C. Each time Agent or Bid Rate Loan Agent, as the case
may be, is notified by Company of a proposed Loan or
issuance of a proposed Letter of Credit, such notification
shall be deemed to constitute a representation of Company
that each of the conditions set forth in this subsection 3.3
will be satisfied on the Funding Date of the proposed Loan
or date of issuance of the proposed Letter of Credit.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement,
Company represents and warrants to each Lender that the
following statements are true, correct and complete:
4.1. Organization, Powers, Good Standing and Business
A. Organization and Powers.
Each Credit Party is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of incorporation. Each Credit Party has all
requisite corporate power and authority to own and operate
its properties, to carry on its business as now conducted and
proposed to be conducted, to enter into and perform under
the Loan Documents, to carry out the transactions
contemplated thereby and to issue the Notes, in each case to
the extent it is a party thereto.
B. Good Standing.
Each Credit Party is or will as of the Closing Date be in
good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its present
business and operations, except where the failure to be so
qualified has not had and will not have a Material Adverse
Effect.
C. Subsidiaries.
All of the Subsidiaries of Company as of the Closing Date
are identified in Schedule C annexed hereto. None of the
capital stock of the Persons identified on Schedule C is
Margin Stock. Each of the Subsidiaries identified on
Schedule C is validly existing and in good standing under
the laws of its respective jurisdiction of incorporation and
has full corporate power and authority to own its assets and
properties and to operate its business as presently owned
and conducted except where failure to be in good standing
or a lack of corporate power and authority has not had and
will not have a Material Adverse Effect. Schedule C
correctly sets forth the ownership interest of each Credit
Party in each of its Subsidiaries identified therein. Each of
the Subsidiaries of Company is a direct or indirect
wholly-owned Subsidiary of Company.
4.2. Authorization of Borrowing, etc.
A. Authorization of Borrowing.
The execution, delivery and performance of the Loan
Documents has been duly authorized by all necessary
corporate action by each Credit Party that is a party thereto.
B. No Conflict.
The execution, delivery and performance by each Credit
Party of the Loan Documents, the issuance, delivery and
performance of the Notes and any other trans- action
contemplated by the Loan Documents do not and will not
(i) violate any provision of law applicable to such Credit
Party, the certificate of incorporation or bylaws of such
Credit Party or any order, judgment or decree of any court
or other agency of government binding on such Credit
Party, violation of which could have a Material Adverse
Effect, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under
any Contractual Obligation of such Credit Party in a
manner that could have a Material Adverse Effect, (iii)
result in or require the creation or imposition of any Lien
upon any of the properties or assets of any Credit Party
(other than Liens granted by Company in the capital stock
of Easco in favor of Agent on behalf of Lenders) or (iv)
require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of
any Credit Party, except for such approvals or consents
which will be obtained on or before the Closing Date as set
forth on Schedule D annexed hereto.
C. Governmental Consents.
The execution, delivery and performance by each Credit
Party of the Loan Documents to which it is a party, the
issuance, delivery and performance of the Notes and the
consummation any other transactions contemplated by the
Loan Documents do not and will not require any
registration with, consent or approval of, or notice to, or
other action in respect of, with or by, any federal, state or
other governmental authority or regulatory body, except for
filings and approvals which have been made or obtained as
set forth on Schedule D hereto and filings and approvals the
failure to make or obtain which would not have a Material
Adverse Effect. All such consents or approvals from or
notices to or filings with any federal, state or other
regulatory authorities required to be obtained on or before
the Closing Date will have been accomplished in all
material respects in compliance with all applicable laws
and regulations.
D. Binding Obligation.
Each of the Loan Documents has been duly executed and
delivered by each Credit Party that is a party thereto, and is
the legally valid and binding obligations of such Credit
Party, enforceable against such Credit Party in accordance
with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors rights generally and subject
to the availability of equitable remedies.
4.3. Financial Condition
Company has heretofore delivered to Lenders, at Lenders
request, the Financial Statements. All such statements were
prepared in conformity with GAAP and fairly present the
consolidated or consolidating, as the case may be, financial
position of Company and its Subsidiaries as at the
respective dates thereof and the consolidated or
consolidating, as the case may be, results of operations and
statements of cash flow of Company and its Subsidiaries
for each of the periods then ended. Neither Company nor
any Subsidiary has (and will not following the funding of
the Loans have) any Contingent Obligation, contingent
liability or liability for taxes, long-term lease or unusual
forward or long-term commitment that is not reflected in
the foregoing Financial Statements that could have a
Material Adverse Effect.
4.4. No Material Adverse Change; No Stock Payments
No event or change has occurred since December 31, 1989
that, in the reasonable judgment of Requisite Lenders, has
caused or evidences, either in any case or in the aggregate,
a Material Adverse Effect. From and after the Closing
Date, neither Company nor any of its Subsidiaries has
directly or indirectly declared, ordered, paid, made or set
apart any sum or property for any Restricted Junior
Payment or agreed so to do except as permitted by
subsection 6.4.
4.5. Title to Properties; Liens
Company and its Subsidiaries have good, sufficient and
legal title, subject to Permitted Encumbrances to or a
leasehold interest, in all the properties and assets reflected
in the more recent of (x) the Financial Statements and (y)
the most recent financial statements delivered pursuant to
subsection 5.1 of this Agreement, except for properties and
assets acquired or disposed of since the date of such
financial statements and except for such defects that in the
aggregate will not have a Material Adverse Effect. All
such properties and assets are free and clear of Liens except
as permitted by this Agreement.
4.6. Litigation; Adverse Facts
There is no action, suit, proceeding, governmental
arbitration or governmental investigation (whether or not
purportedly on behalf of any Credit Party) at law or in
equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, pending or,
to the knowledge of Company, threatened against or
affecting any Credit Party or any property of any Credit
Party that has, or would be expected to result in, any
Material Adverse Effect.
4.7. Payment of Taxes
Except to the extent permitted by subsection 5.3, all tax
returns and reports of Company and its Subsidiaries
required to be filed by it have been timely filed, and all
taxes, assessments, fees and other governmental charges
upon such Persons and upon their respective properties,
assets, income and franchises which are due and payable,
except where being contested in good faith or where the
non-payment of which would not have a Material Adverse
Effect, have been paid when due and payable. Company
knows of no proposed tax assessment against any such
Person which is not being actively contested by such
Person, in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions,
if any, as shall be required in conformity with GAAP shall
have been made or provided therefor.
4.8. Performance of Agreements
A. No Credit Party is in default in the performance,
observance or fulfillment of any of the obligations,
covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of
notice or the lapse of time or both, would constitute such a
default, except where the consequences, direct or indirect,
of such default or defaults, if any, would not in either case
have a Material Adverse Effect. Schedule H correctly
identifies all credit facilities of Company and its
Subsidiaries as of the Closing Date.
B. No Credit Party is a party or subject to any agreement
or instrument which has or will have, in any case or in the
aggregate, a Material Adverse Effect.
4.9. Governmental Regulation
No Credit Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power
Act or the Investment Company Act of 1940 or to any
federal or state statute or regulation limiting its ability to
incur Indebtedness.
4.10. Securities Activities
No Credit Party is 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.
4.11. Employee Benefit Plans
A. Company and each ERISA Affiliate are in substantial
compliance with all applicable provisions and requirements
of ERISA with respect to each Employee Benefit Plan, and
have substantially performed all their obligations under
each Employee Benefit Plan. There are no actions, suits or
claims (other than routine claims for benefits) pending or
threatened against any Employee Benefit Plan or its assets
liability for which would constitute a Material Adverse
Effect, and, to the best knowledge of Company, no facts
exist which could give rise to any such actions, suits or
claims.
B. Except as disclosed in Schedule F, within the period of
five years ending on the Closing Date, no ERISA Event has
occurred, and there is no unpaid liability of Company or
any ERISA Affiliate that arose in connection with any
ERISA Event that occurred prior to that five-year period.
Except as disclosed in Schedule F, no ERISA Event is
reasonably expected to occur with respect to any Employee
Benefit Plan.
4.12. Certain Fees
No broker s or finder s fee or commission are or will be
payable with respect to the offer, issuance and sale of the
Notes or any of the other transactions contemplated hereby
or thereby, and Company hereby indemnifies Lenders
against and agrees that it will hold Lenders harmless from
any claim, demand or liability for broker s or finder s fees
alleged to have been incurred in connection with any such
offer, issuance and sale, or any of the other transactions
contemplated hereby and any expenses, including legal
fees, arising in connection with any such claim, demand or
liability. No other similar fees or commissions will be
payable by any Credit Party for any other services rendered
to Company or any of its Subsidiaries ancillary to the
transactions contemplated hereby.
4.13. Environmental Protection
Except as set forth in Schedule G annexed hereto:
A. the operations of Company and each of its Subsidiaries
(including, without limitation, all operations and conditions
at or in the Facilities) comply in all material respects with
all Environmental Laws non-compliance with which could
have a Material Adverse Effect;
B. Company and each of its Subsidiaries have obtained
all permits under Environmental Laws necessary to their
respective operations, and all such permits are in good
standing, and Company and each of its Subsidiaries are in
compliance with all material terms and conditions of such
permits non-compliance with which could have a Material
Adverse Effect; and
C. neither Company nor any of its Subsidiaries has any
liability (contingent or otherwise) in connection with any
Release of any Hazardous Materials by Company or any of
its Subsidiaries or the existence of any Hazardous Material
on, under or about any Facility that could give rise to an
Environmental Claim that could have a Material Adverse
Effect.
4.14. Solvency
Each Credit Party is, and on and after the Closing Date will
be, Solvent.
4.15. Patents, Trademarks, Etc.
Company and each of its Subsidiaries owns, or is licensed
to use, all patents, trademarks, trade names, copyrights,
technology, know-how and processes used in or necessary
for the conduct of their respective businesses as currently
conducted which are material to the condition (financial or
otherwise), business or operations of Company and its
Subsidiaries (taken as a whole). The use of such patents,
trademarks, trade names, copyrights, technology,
know-how and processes by Company and its Subsidiaries
does not infringe on the rights of any Person, subject to
such claims and infringements as do not, in the aggregate,
give rise to any liability on the part of Company and its
Subsidiaries which is material to either Company and its
Subsidiaries. The consummation of the transactions
contemplated by this Agreement will not require any
consents to be obtained with respect to such patents,
trademarks, trade names, copyrights, technology,
know-how or processes, the absence of which will in any
material manner or to any material extent impair the
ownership of (or the license to use, as the case may be) any
of such patents, trademarks, trade names, copyrights,
technology, know-how or processes by Company and its
Subsidiaries (taken as a whole).
4.16. Disclosure
No representation or warranty of any Credit Party
contained in any Loan Document or any other document,
certificate or written statement furnished to Lenders by or
on behalf of any Credit Party for use in connection with the
transactions contemplated by this Agreement contains any
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
contained herein or therein not misleading in light of the
circumstances in which the same were made. The
projections and pro forma financial information contained
in such materials are based upon good faith estimates and
assumptions believed by Company to be reasonable at the
time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered
by any such projections may differ from the projected
results.
4.17. Senior Indebtedness
The Loans and interest thereon and Company s
reimbursement obligations under the Letters of Credit each
constitute Senior Debt or Senior Indebtedness as such
terms are defined in any indentures or other instruments
defining the rights and obligations of all Existing
Indebtedness of Company which by their terms purport to
be subordinate in right of payment to any other
Indebtedness of Company.
4.18. Margin Stock
Not more than twenty-five percent of the value of the
assets of Company, or of Company and its Subsidiaries on
a consolidated basis, constitutes Margin Stock, and
Company intends that its aggregate Investments in Margin
Stock shall at no time exceed twenty-five percent of the
value of such assets. No part of the proceeds of any Loan
or Letter of Credit will be used to purchase or carry any
Margin Stock in violation of Regulation U or to extend
credit for the purpose of purchasing or carrying any Margin
Stock in violation of Regulation U.
SECTION 5.
AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments or the Letter of Credit Commitment shall be
in effect and until payment in full of all of the Loans and
Notes and other Obligations and the repayment in full of
amounts due under, or the cancellation or expiration of, all
Letters of Credit and all other amounts owing hereunder,
unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its
respective Subsidiaries to perform, all covenants in this
Section 5.
5.1. Financial Statements and Other Reports
Company will maintain, and cause each of its Subsidiaries
to maintain, a system of accounting established and
administered in accordance with sound business practices
to permit preparation of consolidated financial statements
in conformity with GAAP. Company will deliver to
Lenders:
A. Quarterly Financials: as soon as practicable and in any
event within forty-five days after the end of each fiscal
quarter (other than fiscal quarters ending on the last day of
a fiscal year) ending after the Closing Date in Company s
fiscal year, (i) the consolidated balance sheet of Company
and its Subsidiaries, and (ii) the consolidating balance
sheets of Company and Subsidiaries presented on a basis
substantially consistent with the format previously
presented to Lenders under the Old Credit Agreement, in
each case, as at the end of such period, and (iii) the related
consolidated statements of earnings and statements of cash
flow of Company and its Subsidiaries, and (iv) the
consolidating statements of earnings of Company and its
Subsidiaries; in each case, the financial statements shall be
certified by the chief financial officer or controller of
Company to the effect that they fairly present the financial
condition of the respective entity as at the dates indicated
and the results of their operations and statements of cash
flow subject to changes resulting from audit and normal
year-end adjustments, based on their respective normal
accounting procedures applied on a consistent basis;
B. Year-End Financials: as soon as practicable and in any
event within ninety days after the end of each fiscal year, (i)
the consolidated balance sheet of Company and its
Subsidiaries, and (ii) the consolidating balance sheets of
Company and its Subsidiaries presented on a basis
reasonably satisfactory to Requisite Lenders, in each case,
as at the end of such period, and (iii) the related
consolidated statements of earnings and statements of cash
flow of Company and its Subsidiaries, and (iv) the
consolidating statements of earnings of Company and its
Subsidiaries and, in the case of items (i) and (iii), as
certified by independent public accountants of recognized
national standing reasonably acceptable to Agent;
C. Officers and Compliance Certificates: together with
each delivery of financial statements of Company and its
Subsidiaries pursuant to subsection 5.1.A and subsection
5.1.B above, (i) an Officers Certificate of Company stating
that the signers have reviewed the terms of this Agreement
and have made, or caused to be made under their
supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries
during the accounting period covered by such financial
statements and that such review has not disclosed the
existence during or at the end of such accounting period,
and that the signers do not have knowledge of the existence
as at the date of the Officers Certificate, of any condition
or event which constitutes an Event of Default or Potential
Event of Default, or, if any such condition or event existed
or exists, specifying the nature and period of existence
thereof and what action Company has taken, is taking and
proposes to take with respect thereto; and (ii) a Compliance
Certificate demonstrating in reasonable detail compliance
(as determined in accordance with GAAP) during and at the
end of such accounting periods with the restrictions
contained in subsections 6.1, 6.2, 6.3, 6.5, and 6.6 and, in
addition, a written statement of the chief accounting officer,
chief financial officer or controller of Company describing
in reasonable detail the differences between the financial
information contained in such financial statements and the
information contained in the Compliance Certificate
relating to Company s compliance with subsection 6.5;
D. Reconciliation Statement: if, as a result of any change
in accounting principles and policies from those used in the
preparation of the Financial Statements, the consolidated
financial statements of Company and its Subsidiaries
delivered pursuant to subsections A, B or L of this
subsection 5.1 will differ in any material respect from the
consolidated financial statements that would have been
delivered pursuant to such subsections had no such change
in accounting principles and policies been made, then,
together with the first delivery of financial statements
pursuant to subsection A, B or L following such change,
consolidated financial statements of Company and its
Subsidiaries prepared on a pro forma basis, for (i) the
current year to the effective date of such change and (ii) the
two full fiscal years immediately preceding the fiscal year
in which such change is made, as if such change had been
in effect during such period;
E. Accountants Certification: together with each delivery
of consolidated financial statements of Company and its
Subsidiaries pursuant to subsection 5.1.B above, a written
statement by the independent public accountants giving the
report thereon (i) stating that their audit examination has
included a review of the terms of this Agreement as they
relate to accounting matters, (ii) stating whether, in
connection with their audit examination, any condition or
event which constitutes an Event of Default or Potential
Event of Default has come to their attention, and if such a
condition or event has come to their attention, specifying
the nature and period of existence thereof; provided that
such accountants shall not be liable by reason of any failure
to obtain knowledge of any such Event of Default or
Potential Event of Default that would not be disclosed in
the course of their audit examination, and (iii) stating that
based on their audit examination nothing has come to their
attention which causes them to believe that the information
contained in either or both of the certificates delivered
therewith pursuant to subsection C above is not correct or
that the matters set forth in the Compliance Certificate
delivered therewith pursuant to clause (ii) of such
subsection C above for the applicable fiscal year are not
stated in accordance with the terms of this Agreement;
F. Audit Reports: promptly upon receipt thereof, copies
of all reports submitted to Company by independent public
accountants in connection with each annual, interim or
special audit of the financial statements of Company made
by such accountants, including, without limitation, the
comment letter submitted by such accountants to
management in connection with their annual audit;
G. SEC Filings: promptly upon their becoming available,
copies of all financial statements, reports, notices and proxy
statements sent or made available generally by Company to
its security holders or by any Subsidiary of Company to its
security holders other than Company or another Subsidiary,
of all regular and periodic reports and all registration
statements and prospectuses, if any, filed by Company or
any of its Subsidiaries with any securities exchange or with
the Securities and Exchange Commission and of all press
releases and other statements made available generally by
Company or any Subsidiary to the public concerning
material developments in the business of Company and its
Subsidiaries;
H. Events of Default: promptly upon any officer of
Company obtaining knowledge (i) of any condition or
event which constitutes an Event of Default or Potential
Event of Default, (ii) that any Person has given any notice
to Company or any Subsidiary of Company or taken any
other action with respect to a claimed default or event or
condition of the type referred to in subsection 7.2, (iii) of
any condition or event which would be required to be
disclosed in a current report filed by Company with the
Securities and Exchange Commission on Form 8-K (Items
1, 2, 4 and 5 of such Form as in effect on the date hereof) if
Company were required to file such reports under the
Exchange Act, or (iv) of a material adverse change in the
business, operations, properties, assets or condition
(financial or otherwise) of Company and its Subsidiaries
(taken as a whole), an Officers Certificate specifying the
nature and period of existence of any such condition or
event, or specifying the notice given or action taken by
such holder or Person and the nature of such claimed
default, Event of Default, Potential Event of Default, event
or condition, and what action Company has taken, is taking
and proposes to take with respect thereto;
I. Litigation: promptly upon any officer of Company
obtaining knowledge of (i) the institution of, or
non-frivolous threat of, any action, suit, proceeding,
governmental investigation or arbitration against or
affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries not
previously disclosed by Company to Lenders, or (ii) any
material development in any such action, suit, proceeding,
governmental investigation or arbitration, which in either
case, if adversely determined, could have a Material
Adverse Effect, Company shall give notice thereof the
Lenders and provide such other information as may be
reasonably available to it (without waiver of any applicable
evidentiary privilege) to enable Lenders and their counsel
to evaluate such matters;
J. ERISA Events: promptly upon becoming aware of the
occurrence of any ERISA Event that could result in liability
that would constitute a Material Adverse Effect, a written
notice specifying the nature thereof, what action Company
has taken, is taking or proposes to take with respect thereto,
and, when known, any action taken or threatened by and
any notices received from the Internal Revenue Service, the
Department of Labor, the PBGC or a Multiemployer Plan
sponsor with respect thereto;
K. Financial Plans: as soon as practicable and in any
event by the fifteenth day following the last day of each
fiscal year of Company, a consolidated plan and financial
forecast, prepared in accordance with Company s normal
accounting procedures applied on a consistent basis, for the
next succeeding fiscal year of Company and its
Subsidiaries, including, without limitation, (i) a forecasted
consolidated balance sheet and a consolidated statement of
earnings and a consolidated statement of cash flows of
Company for such fiscal year, (ii) forecasted consolidated
balance sheets, statement of earnings and retained earnings,
and cash flows of Company for each fiscal quarter of such
fiscal year and forecasted balance sheets and statements of
earnings and cash flows for each Reporting Division for
each fiscal quarter of such fiscal year, and (iii) the amount
of forecasted capital expenditures for such fiscal year;
L. Insurance: as soon as practicable and in any event by
the March 31 following the last day of each fiscal year of
Company, a report in form and substance reasonably
satisfactory to Agent and Requisite Lenders outlining all
material insurance coverage maintained as of the date of
such report by Company and its Subsidiaries and all
material insurance coverage planned to be maintained by
such Persons in the subsequent fiscal year; and
M. Other Information: with reasonable promptness, such
other information and data with respect to Company or any
of its Subsidiaries as from time to time may be reasonably
requested by any Lender.
5.2. Corporate Existence, Etc.
Except as otherwise provided in subsection 6.6, Company
will, and will cause each of its Material Subsidiaries to, at
all times preserve and keep in full force and effect its
corporate existence and rights and franchises material to its
business and those of each of Company s Material
Subsidiaries; provided, however, that the corporate
existence of any such Material Subsidiary may be
terminated if such termination is in the best interests of its
parent or Company and would not have a Material Adverse
Effect.
5.3. Payment of Taxes and Claims; Tax Consolidation
A. Company will, and will cause each of its Subsidiaries
to, pay all taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or
in respect of any of its franchises, business, income or
property before any penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services,
materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto, which
Liens secure taxes, assessments or other governmental
charges or claims, individually or in the aggregate, in
excess of $500,000; provided that no such charge or claim
need be paid if being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been
made therefor.
B. Company will not file or consent to the filing of, or
permit any of its respective Subsidiaries to file or consent
to the filing of, any consolidated income tax return with any
Person (other than Company or any of their respective
Subsidiaries).
5.4. Maintenance of Properties; Insurance
Company will maintain or cause to be maintained in good
repair, working order and condition all material properties
used or useful in the business of Company and its
Subsidiaries and from time to time will make or cause to be
made all appropriate repairs, renewals and replacements
thereof on a timely basis considering the nature of the
repair. Company will maintain or cause to be maintained,
with financially sound and reputable insurers, insurance
with respect to its properties and businesses and the
properties and businesses of its Subsidiaries against loss or
damage of the kinds customarily carried or maintained
under similar circumstances by corporations of established
reputation engaged in the same or similar businesses and
similarly situated, of such types and in amounts as are
customarily carried under similar circumstances by such
other corporations.
5.5. Inspection; Lender Meeting
Company shall permit any authorized representatives
designated by any Lender to visit and inspect any of the
properties of Company or any of its Subsidiaries, including
its and their financial and accounting records, and to make
copies and take extracts therefrom, and to discuss its and
their affairs, finances and accounts with its and their
officers and independent public accountants, all upon
reasonable notice and at such reasonable times during
normal business hours and as often as may be reasonably
requested, provided such information is not subject to
privilege. Without in any way limiting the foregoing,
Company will, upon the request of Requisite Lenders,
participate in a meeting of Agent and Lenders at least once
during each fiscal year to be held at a location acceptable to
Company, at such time as may be agreed to by Company
and Requisite Lenders.
5.6. Compliance with Laws, Etc.
Company shall, and shall cause its Subsidiaries to, comply
in all material respects with the requirements of all
applicable laws, rules, regulations and orders of any
governmental authority non-compliance with which could
have a Material Adverse Effect. Company shall not engage
in any transaction or permit the occurrence of any act or
omission, and shall cause each ERISA Affiliate not to
engage in any transaction or to permit the occurrence of any
act or omission, which would constitute, or would give rise
to, an ERISA Event that could have a Material Adverse
Effect.
5.7. Further Assurances as to Future Material Subsidiaries
Company will notify Agent promptly in the event that any
Person becomes a Material Subsidiary of Company, will
cause each such new Material Subsidiary to promptly
execute and deliver to Agent on behalf of Lenders a
Subsidiary Guaranty, and will take all such further action as
may be required to guaranty the Obligations of Company
under this Agreement as may be reasonably required by
Agent or Requisite Lenders. Immediately upon the
repayment of the Easco Debt, Company shall cause Easco
to execute and deliver to Agent on behalf of Lenders its
Subsidiary Guaranty.
5.8. Environmental Disclosure and Inspection
A. Company shall, and shall cause each of its
Subsidiaries to, exercise all due diligence in order to
comply and cause (i) all tenants under any lease or
occupancy agreement affecting any portion of the Facilities
and (ii) all other Persons on or occupying such property, to
comply with all Environmental Laws, noncompliance with
which could have a Material Adverse Effect.
B. Company agrees that Agent may, from time to time if
in the reasonable judgment of Agent it is advisable to do so,
retain, at Company s expense, an independent professional
consultant to review any report relating to Hazardous
Materials prepared by or for Company disclosing an event
or occurrence that could result in liability that could have a
Material Adverse Effect, and, if advisable in light of the
results of such review, to conduct its own investigation of
any Facility; provided that with respect to any Facility no
longer owned or operated by Company or any of its
Subsidiaries, Company shall use its best efforts to obtain
from the owner or operator thereof for Agent to have access
thereto. Company hereby grants to Agent, its agents,
employees, consultants and contractors the right to enter
into or onto the Facilities to perform such tests on such
property as are reasonably necessary to conduct such a
review and/or investigation. Lenders shall have no duty to
disclose or discuss any information produced by such
reviews or investigations with Company or any of its
Subsidiaries.
C. Company shall promptly advise Lenders in writing and
in reasonable detail of (i) any Release of any Hazardous
Material required to be reported to any federal, state or
local governmental or regulatory agency under any
applicable Environmental Laws, (ii) any and all written
communications with respect to Environ- mental Claims or
any Release of Hazardous Material required to be reported
to any federal, state or local governmental or regulatory
agency, (iii) any remedial action taken by Company or any
other Person in response to (a) any Hazardous Material on
or under any Facility, the existence of which could result in
an Environmental Claim having a
Material Adverse Effect or (b) any Environmental Claim
that could have a Material Adverse Effect, and (iv) any
request for information from any governmental agency that
indicates such agency is investigating whether Company or
any of its Subsidiaries may be potentially responsible for a
Release of Hazardous Materials.
D. Company shall promptly notify Lenders of any
proposed acquisition of stock, assets or property by
Company or any of its Subsidiaries, that could reasonably
be expected to expose Company or any of its Subsidiaries
to, or result in, Environmental Claims that could have a
Material Adverse Effect.
E. Company shall, at is own expense, provide copies of
such documents or information as Agent may reasonably
request in relation to any matters disclosed pursuant to this
subsection 5.8.
5.9. Hazardous Materials; Company s Remedial Action
Company shall, and shall cause each of its Subsidiaries to,
promptly take any and all remedial action in connection
with the presence, storage, use, disposal, transportation or
Release of any Hazardous Materials on or under any
Facility (excluding any Facility no longer owned or
operated by Company or any of its Subsidiaries) the failure
of which to take could have a Material Adverse Effect. In
the event Company or any of its Subsidiaries undertakes
any remedial action with respect to any Hazardous Material
on or under any such Facility, Company or such Subsidiary
shall conduct and complete such remedial action in material
compliance with all applicable Environmental Laws, except
when and only to the extent that Company s or such
Subsidiary s liability for such presence, storage, use,
disposal, transportation or discharge of any Hazardous
Material is being contested in good faith by Company or
such Subsidiary.
5.10. Equal Security for Loans and Notes
If Company or any of its Subsidiaries shall create or
assume any Lien upon any of its property or assets, whether
now owned or hereafter acquired, other than Liens by the
provisions of subsection 6.2 (unless prior written consent to
the creation or assumption thereof shall have been obtained
from Requisite Lenders), it shall, at the request of Requisite
Lenders, make or cause to be made effective provision
whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness
thereby secured as long as any such Indebtedness shall be
secured; provided, that this covenant shall not be construed
as consent by Agent or any Lender to any violation of the
provisions of subsection 6.2.
SECTION 6.
COMPANY S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments or the Letter of Credit Commitment shall be
in effect and until payment in full of all of the Loans and
the Notes and other Obligations and the repayment in full
of all amounts due under, or the cancellation or expiration
of, all Letters of Credit and all other amounts owing
hereunder, unless Requisite Lenders shall otherwise give
prior written consent, Company will perform, and shall
cause each of its Subsidiaries to perform, all of its
covenants contained in this Section 6.
6.1. Indebtedness and Contingent Obligations
Company will not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume, guaranty, or
otherwise become or remain directly or indirectly liable
with respect to any Indebtedness or Contingent Obligations,
except:
A. Each Guarantor may become and remain liable with
respect to the Subsidiary Guaranties;
B. The Subsidiaries of Company may become and remain
liable with respect to intercompany Indebtedness;
C. The Subsidiaries of Company may become and remain
liable with respect to Indebtedness and Contingent
Obligations not otherwise covered by a separate clause of
this subsection 6.1 in an aggregate principal amount
outstanding at any one time incurred from and after the
Closing Date not to exceed $50,000,000; provided that, the
entire principal amount of any Indebtedness and Contingent
Obligations with respect to which a Subsidiary of Company
is liable, if such Person became a Subsidiary of Company
on or after the Closing Date, shall be included in the
calculation of such aggregate Indebtedness and Contingent
Obligations; and
D. Contingent Obligations of the Subsidiaries of
Company resulting from endorsement of negotiable
instruments for collection in the ordinary course of
business;
E. Contingent Obligations of the Subsidiaries of
Company respecting customary indemnification and
purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;
F. Contingent Obligations of the Subsidiaries of
Company under guarantees in the ordinary course of
business of the obligations of suppliers, customers,
franchisees and licensees of Company and its Subsidiaries
not exceeding at any time outstanding $2,000,000 in
aggregate liability;
G. Existing Indebtedness described in Schedule H
annexed hereto; and
H. Contingent Obligations described in Schedule I
annexed hereto.
6.2. Liens and Related Matters
A. Prohibitions on Liens.
Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume
or permit to exist any Lien on or with respect to any
property or asset (including any document or instrument in
respect of goods or accounts receivable) of any Credit
Party, whether now owned or hereafter acquired, or any
income or profits therefrom, except:
(i) Permitted Encumbrances;
(ii) Liens on assets of any Subsidiary of Company that
secure Indebtedness of such Subsidiary outstanding at the
time such Person became a Subsidiary of Company,
provided that such Indebtedness was not incurred in
connection with or anticipation of such event; and
(iii) The liens on the capital stock of Easco created
by the Pledge Agreement.
B. No Restrictions on Subsidiary Distributions to
Company.
Except pursuant to this Agreement, Company will not, and
will not permit any of its Subsidiaries to, create or
otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind (other
than those restrictions in existence prior to the Closing Date
as set forth on Schedule J annexed hereto) on the ability of
any Subsidiary to (i) pay dividends or make any other
distribution on any of such Subsidiary s capital stock
owned by Company or any Subsidiary of Company; (ii)
pay any Indebtedness owed to Company or any other
Subsidiary; (iii) make loans or advances to Company or any
other Subsidiary; or (iv) transfer any of its property or
assets to Company or any other Subsidiary.
6.3. Investments; Joint Ventures
Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, make or own any
Investment in the Securities of any Person or in any Joint
Venture, except:
A. Company and its Subsidiaries may make purchases of
or otherwise acquire all or substantially all of the assets of
any Person or the capital stock of any Person if Company
shall (i) be entitled to purchase and shall purchase such
number of shares of the capital stock of such Person such
that Company will have the ability to cause the merger of
such Person with and into a Subsidiary of Company
without the necessity that holders of such capital stock
(other than Company, Affiliates or Persons acting in
concert with Company) approve such merger and such
merger or acquisition actually occurs as soon as practicable
following the purchase of such shares, (ii) directly or
indirectly own all of the voting stock (on a fully diluted
basis) of such Person or (iii) acquire all or substantially all
of the assets of such Person; provided that Company and its
Subsidiaries may make no such acquisition of all or
substantially all of the assets of any Person or the capital
stock of any Person if such acquisition is not approved in
advance by affirmative vote of the board of directors of
such Person; provided further that, prior to the
consummation of any such acquisition, Company shall
have delivered to Agent an Officers Certificate of
Company stating that, after giving effect to the proposed
acquisition, Company will be in compliance on a pro forma
basis with the covenants contained in subsection 6.5,
recomputed as at the last day of the most recently ended
fiscal quarter of Company and including for purposes of
such pro forma calculation the relevant financial
information for the Person whose capital stock, or all or
substantially all the assets of which, are proposed to be
acquired;
B. Company and its Subsidiaries may purchase and hold,
for investment purposes only, Marketable Securities and
Non-Marketable Securities, valued at the original cost
thereof, as follows: (i) during any Pricing Period for which
Company s Pricing Level is Pricing Level I, Company and
its Subsidiaries may have Investments in Marketable
Securities or Non-Marketable Securities, or any
combination thereof, in an aggregate amount not to exceed
$100,000,000; (ii) during any Pricing Period for which
Company s Pricing Level is Pricing Level II, Company and
its Subsidiaries may have Investments in Marketable
Securities or Non-Marketable Securities, or any
combination thereof, in an aggregate amount not to exceed
$75,000,000, provided that the portion thereof held in
Non-Marketable Securities shall in no event exceed
$35,000,000; and (iii) during any Pricing Period for which
Company s Pricing Level is Pricing Level III, Company
and its Subsidiaries may have Investments in Marketable
Securities or Non-Marketable Securities, or any
combination thereof, in an aggregate amount not to exceed
$25,000,000, provided further that the portion thereof held
in Non-Marketable Securities shall in no event exceed
$12,500,000; provided still further that in the event that
Company and its Subsidiaries have Excess Investments in
Securities, to the extent that the Total Utilization of
Revolving Loan Commitments exceeds the Revolving Loan
Commitments then in effect, Company and its Subsidiaries
shall commence to dispose of such excess Securities in a
prudent and diligent manner; provided still further that the
aggregate Investments under this subsection 6.3.B in any
one Person may not exceed ten percent of Adjusted
Tangible Net Worth determined as at the time of such
Investment;
C. Company and its Subsidiaries may make Investments
in Joint Ventures in which Company or such Subsidiary has
an active managerial role in the decision making and
operations; and
D. Company and its Subsidiaries may make and own
Investments in Cash Equivalents.
6.4. Restricted Junior Payments
Upon the occurrence and during the continuance of an
Event of Default or a Potential Event of Default, Company
will not, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Junior Payment.
6.5. Financial Covenants
A. Consolidated Current Ratio.
Company will not permit, at any time, the ratio of
Consolidated Current Assets to Consolidated Current
Liabilities to be less than 1.25:1.
B. Adjusted Leverage Ratio.
Company will not permit, at any time, the Adjusted
Leverage Ratio to exceed 1.10:1.
C. Minimum Adjusted Tangible Net Worth.
Company will not permit, at any time, the Adjusted
Tangible Net Worth to be less than the Minimum Adjusted
Tangible Net Worth.
D. Interest Coverage Ratio.
Company will not permit the Adjusted Interest Coverage
Ratio to be less than 2.50:1. Such ratio will be calculated
on a cumulative quarterly basis as of the last day of each of
the four-fiscal quarters immediately succeeding the Closing
Date, and, thereafter, calculated as of the last day of each
fiscal quarter for the immediately preceding four fiscal
quarters.
6.6. Restriction on Fundamental Changes; Asset Sales
Subject to subsection 5.2, Company and its Subsidiaries
will not alter in any material respect their respective
corporate, capital or legal structure or enter into any
transaction of merger, or consolidate, or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution),
or convey, sell, lease, sub-lease, transfer or otherwise
dispose of, in one transaction or a series of transactions, all
or any substantial part of their respective business, property
or fixed assets, whether now owned or hereafter acquired,
or acquire by purchase or otherwise all or substantially all
the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person, except in
accordance with subsection 6.3.A, 6.3.D or as follows:
A. Company and its Subsidiaries may sell or dispose of
assets for the Fair Market Value thereof; provided that (x)
in the case of a sale or disposition, or a series of related
sales or dispositions, in excess of $500,000, the
determination of the value thereof shall be made in good
faith by the board of directors of Company or such
Subsidiary, as the case may be, (y) fifty percent of the
consideration therefor is received in cash at the
consummation of the sale thereof, and (z) after giving effect
thereto, the aggregate of all notes or other evidences of
Indebtedness in respect of the non-cash portion of all such
dispositions made by Company and its Subsidiaries shall in
no event exceed $50,000,000 outstanding at any one time;
B. Company and its Subsidiaries may sell or otherwise
dispose of obsolete or worn out property and may sell,
resell or otherwise dispose of real or personal property held
for sale or resale in the ordinary course of business;
C. any Subsidiary of Company may be merged or
consolidated with or into any wholly-owned Subsidiary of
Company if such wholly-owned Subsidiary shall be the
surviving corporation;
D. any wholly-owned Subsidiary of Company may be
wound-up, liquidated or dissolved, or all or substantially all
of its business, property or assets may be con- veyed, sold,
leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to, any other
wholly-owned Subsidiary of Company; and
E. Company may make distributions on account of any
class of shares of its capital stock in accordance with
subsection 6.4; provided that, if any such distribution is
made with assets other than Cash or shares of common
stock of Company, the fair market value of such assets,
plus the fair market value of all assets previously
distributed to Company s shareholders pursuant to this
subsection 6.6.E, plus all amounts received by Company or
any of its Subsidiaries from and after the Closing Date in
respect of Cash Proceeds of Asset Sales, Condemnation
Proceeds and Insurance Proceeds (other than those items
specifically excluded in the parenthetical contained in the
definition of Aggregate Excess Proceeds) shall in no event
exceed $50,000,000.
To the extent necessary to consummate any transaction
permitted by this subsection 6.6, Agent and the Lenders
agree to release from the pledge of the Pledge Agreement
the capital stock of Easco if it is the subject of such
transaction and to release the Subsidiary Guaranty of any
Subsidiary Guarantor that is the subject of such transaction.
6.7. Transactions with Shareholders and Affiliates
Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 5% or more of
any class of equity securities of Company or with any
Affiliate of Company or any Affiliate of any such holder, as
the case may be, on terms that are less favorable to
Company or that Subsidiary, as the case may be, than those
which might be obtained at the time from Persons who are
not such a holder or Affiliate; provided that the foregoing
restriction shall not apply to (a) any transaction between
Company and any of its wholly-owned Subsidiaries or
between any of its wholly-owned Subsidiaries and (b)
customary fees paid to members of the board of directors of
Company and its Subsidiaries.
6.8. Disposal of Subsidiary Stock
Company will not, and will not permit any of its
Subsidiaries to (except as permitted by subsection 6.7);
A. directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other
equity securities of (or warrants, rights or options to acquire
shares or other equity securities of) any of its Subsidiaries,
except to qualify directors if required by applicable law; or
B. permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of
any shares of capital stock or other securities of (or
warrants, rights or options to acquire shares or other
securities of) any of its Sub- sidiaries, except to Company,
another Subsidiary of Company, or to qualify directors if
required by applicable law.
6.9. Amendments or Waivers of Charter Documents and
Certain Other Documents: Prepayments of Subordinated
Indebtedness
Company will not, and will not permit any of its
Subsidiaries to, agree to any amendment to, or waive any of
its rights under, any of its articles of incorporation or
bylaws or other documents relating to the Company
Common Stock, or the equity securities of Company or its
Subsidiaries, if such amendment or waiver of such right
would have a Material Adverse Effect. Company will not
amend or otherwise change any material term of any
agreement, instrument or other document establishing the
terms and conditions of any Separate Letter of Credit
Facility. Neither Company nor any of its Subsidiaries will
amend or otherwise change the terms of any Subordinated
Indebtedness except as specifically permitted hereby, or
make any payment consistent with an amendment or
change thereto, if the effect of such amendment or change
is to increase the interest rate on such Subordinated
Indebtedness, change the dates upon which payments of
principal or interest are due thereon, change any event of
default or condition to an event of default with respect to
such Subordinated Indebtedness, grant any security interest
in favor of such Subordinated Indebtedness, change the
redemption provisions thereof, change the subordination
provisions thereof, cause the Subordinated Indebtedness to
be guaranteed by any Person or which, together with all
other amendments or changes made, increase materially the
obligations of the obliger or confer additional rights on the
holder of such Subordinated Indebtedness which would be
adverse to Company or Lenders.
SECTION 7.
EVENTS OF DEFAULT
IF any of the following conditions or events ( Events of
Default ) shall occur and be continuing:
7.1. Failure to Make Payments When Due
Failure to pay any installment of principal of any Loan
when due, or any amount payable in reimbursement of the
Issuing Lender in respect of a Letter of Credit when due,
whether at stated maturity, by acceleration, by notice of
prepayment or otherwise; or failure to pay any installment
of interest on any Loan or any other amount due under this
Agreement within five days after the date due; or
7.2. Default in Other Agreements
A. Failure of the Credit Parties to pay when due (x) any
principal or interest on any Indebtedness (other than
Indebtedness referred to in subsection 7.1) in an individual
principal amount of $5,000,000 or more or items of
Indebtedness with an aggregate principal amount of
$5,000,000 or more, or (y) any Contingent Obligation in an
individual principal amount of $5,000,000 or more or
Contingent Obligations with an aggregate principal amount
of $5,000,000 or more, in each case beyond the end of any
grace period provided therefor; provided that, in the event
that and for so long as the Revolving Loan Commitments
then in effect exceed the Total Utilization of Revolving
Loan Commitments by an amount equal to or greater than
the principal amount of, and unpaid accrued interest and
premium on, the Easco Debt, no payment default on the
Easco Debt shall constitute an Event of Default hereunder;
or
B. Breach or default of the Credit Parties with respect to
any other material term of (x) any evidence of any
Indebtedness in an individual principal amount of
$5,000,000 or more or items of Indebtedness with an
aggregate principal amount of $5,000,000 or more or any
Contingent Obligation in an individual principal amount of
$5,000,000 or more or Contingent Obligations with an
aggregate principal amount of $5,000,000 or more; or (y)
any loan agreement, mortgage, deed of trust, indenture or
other agreement relating thereto, if the effect of such
failure, default or breach is to cause, or to permit the holder
or holders of that Indebtedness or Contingent Obligation
(or a trustee on behalf of such holder or holders) to cause,
that Indebtedness or Contingent Obligation to become or be
declared due prior to its stated maturity (or the stated
maturity of any underlying obligation, as the case may be);
provided that, in the event that and for so long as the
Revolving Loan Commitments then in effect exceed the
Total Utilization of Revolving Loan Commitments by an
amount equal to or greater than the principal amount of,
and unpaid accrued interest and premium on, the Easco
Debt, no such default on the Easco Debt shall constitute an
Event of Default hereunder; or
7.3. Breach of Certain Covenants
Failure of any Credit Party to perform or comply with any
term or condition contained in subsection 2.6, 2.7, 5.2 or
5.10 or Section 6 beyond any grace period provided for in
such respective section, or any material term of any Loan
Document (other than this Agreement); or
7.4. Breach of Warranty
Any representation, warranty, certification or other
statement made by any Credit Party in any Loan Document
or in any statement or certificate at any time given by any
Credit Party in writing pursuant hereto or in connection
herewith or therewith, shall be false in any material respect
on the date as of which made; or
7.5. Other Defaults Under Agreement or Loan Documents
Any Credit Party shall default in the performance of or
compliance with any term contained in this Agreement or
the other Loan Documents other than those otherwise
referred to in this Section 7 and such default shall not have
been remedied or waived within thirty days after receipt by
Company of notice from any Lender of such default; or
7.6. Involuntary Bankruptcy; Appointment of Receiver,
etc.
(i) A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of any Credit
Party, in an involuntary case under the Bankruptcy Code or
any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, which decree or order is not
stayed; or any other similar relief shall be granted under
any applicable federal or state law; or
(ii) an involuntary case is commenced against any
Credit Party, under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect; or a decree
or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers
over any Credit Party, or over all or a substantial part of its
property, shall have been entered; or the involuntary
appointment of an interim receiver, trustee or other
custodian of any Credit Party, for all or a substantial part of
its property; or the issuance of a warrant of attachment,
execution or similar process against any substantial part of
the property of any Credit Party, and the continuance of any
such event in clause (ii) for sixty days unless dismissed,
bonded or discharged; or
7.7. Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Any Credit Party shall have an order for relief
entered with respect to it or commence a voluntary case
under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial
part of its property; the making by any Credit Party of any
assignment for the benefit of creditors; or
(ii) the inability or failure of any Credit Party, or the
admission by any Credit Party in writing of its inability, to
pay its debts as such debts become due; or the board of
directors of any Credit Party (or any committee thereof)
adopts any resolution or otherwise authorizes action to
approve any of the actions referred to in clause (i) or this
clause (ii) of subsection 7.7; or
7.8. Judgements and Attachments
Any money judgment, writ or warrant of attachment, or
similar process involving (i) in any individual case an
amount in excess of $5,000,000 or (ii) in the aggregate at
any time an amount in excess of $10,000,000 (in either case
not adequately covered by insurance as to which the
insurance company has acknowledged coverage) shall be
entered or filed against any Credit Party or any of its
respective assets and shall remain undischarged, unvacated,
unhanded or unstayed for a period of sixty days or in any
event later than five days prior to the date of any proposed
sale thereunder; or
7.9. Dissolution
Any order, judgment or decree shall be entered against any
Credit Party decreeing the dissolution or split up of
Company or any Material Subsidiary and such order shall
remain undischarged or unstayed for a period in excess of
thirty days; or
7.10. Employee Benefit Plans
There occurs one or more ERISA Events resulting (i) in
any individual case, liability to Company or any ERISA
Affiliate in excess of $5,000,000 or (ii) in the aggregate
during the term of this Agreement, liability of Company
and its ERISA Affiliates in excess of $10,000,000;
provided, however, that it shall be an Event of Default if
there exists, as of any valuation date for a Pension Plan, an
excess of the present value (determined on the basis of
reasonable assumptions used by the independent actuary for
such Pension Plan) of the accrued benefits (whether or not
vested) of the participants and beneficiaries of such Pension
Plan over the fair market value of the assets of such
Pension Plan, only if such excess, when added to the
excesses calculated in the same manner for each of the
other Pension Plans as of the most recently preceding
valuation date for each such other Pension Plan, exceeds
$20 million; or
7.11. Invalidity of Guaranties or Pledge Agreement
Any Guaranty or the Pledge Agreement for any reason,
other than the satisfaction in full of all Obligations or the
termination or release thereof in accordance with the
provisions hereof and thereof, ceases to be in full force and
effect or is declared to be null and void, or any Credit Party
denies that it has any further liability, including without
limitation with respect to future advances by Lenders,
under any Loan Document to which it is a party, or gives
notice to such effect; or
7.12. Change of Control
There shall occur a Change of Control Event.
THEN (i) upon the occurrence of any Event of Default
described in the foregoing subsections 7.6 or 7.7, each of
(a) the unpaid principal amount of and accrued interest on
the Loans, (b) an amount equal to the maximum amount
that may at any time be drawn under all Letters of Credit
then outstanding (whether or not any beneficiary under any
Letter of Credit shall have been presented or be entitled to
present, the drafts and other documents required to draw
under the Letter of Credit) (the Maximum Available
Amount ), and (c) all other Obligations, shall automatically
become immediately due and payable, without
presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by
Company, and the obligation of each Lender to make any
Loan or to issue any Letter of Credit shall thereupon
terminate, and (ii) upon the occurrence and during the
continuance of any other Event of Default, Agent shall,
upon the written request of Requisite Lenders, by written
notice to Company, declare all or any portion of the
amounts described in clauses (a) through (c) above to be,
and the same shall forthwith become, immediately due and
payable, together with accrued interest thereon, and the
obligation of each Lender to make any Loan or to issue any
Letter of Credit shall thereupon terminate and Lenders may
pursue any and all remedies under the Loan Documents;
provided, that the foregoing shall not affect in any way the
obligations of Lenders under subsection 2.4.D or the
obligations of Lenders to make Revolving Loans to
reimburse drawings under Letters of Credit as provided in
subsection 2.4.C. So long as any Letter of Credit shall
remain outstanding, any amounts described in clause (b)
above with respect to Letters of Credit, when received by
any Issuing Lender, shall be held by such Issuing Lender,
pursuant to such documentation as such Issuing Lender
shall request, as cash collateral for the obligation of
Company to reimburse such Issuing Lender in the event of
any drawing under such Letters of Credit, and so much of
such funds shall at all times remain on deposit as cash
collateral as aforesaid as shall equal the Maximum
Available Amount; provided further that in the event of
cancellation or expiration of any Letter of Credit or any
reduction in the Maximum Available Amount, the Issuing
Lender shall apply the difference between the Maximum
Available Amount immediately prior to such cancellation,
expiration or reduction and the Maximum Available
Amount immediately after such cancellation, expiration or
reduction first to the payment of any outstanding
Obligation, and then to the payment to whomsoever shall
be lawfully entitled to receive such funds. If at any time
within sixty days after acceleration of the maturity of the
Loans, Company shall pay all arrears of interest and all
payments on account of the principal which shall have
become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by law, on overdue
interest, at the rate specified in this Agreement) and all
Events of Default and Potential Events of Default (other
than non-payment of principal of and accrued interest on
the Loans, and payments of amounts referred to in clause
(b) above, in each case due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to
subsection 9.6, then Agent on behalf of Requisite Lenders
by written notice to Company may, but shall not be
obligated to, rescind and annul the acceleration and its
consequences; and Agent shall return to Company any
amounts held by Agent as cash collateral in respect of
amounts described in clause (b) above; but such action shall
not affect any subsequent Event of Default or Potential
Event of Default or impair any right attendant to such
subsequent Event of Default or Potential Event of Default.
SECTION 8.
AGENT AND BID RATE LOAN AGENT
8.1. Appointment
Bankers is hereby appointed Agent hereunder and under
the other Loan Documents. Each Lender hereby authorizes
Agent to act as its agent in accordance with the terms
hereof and the other Loan Documents and under the other
instruments and agreements referred to herein and therein.
Agent agrees to act upon the express conditions contained
in this Agreement and the other Loan Documents, as
applicable. Company may appoint Continental Bank to act
as Bid Rate Loan Agent hereunder and Continental Bank
may accept or decline such appointment. In the event that
Continental Bank accepts such appointment, each Lender
shall be deemed to have authorized Continental Bank to act
in the capacity of Bid Rate Loan Agent as agent for such
Lender in accordance with the terms hereof. Continental
Bank agrees that if it is so appointed, it will act upon the
express conditions contained in this Agreement. The
provisions of this Agreement are solely for the benefit of
Agent, Bid Rate Loan Agent (other than Company acting as
Bid Rate Loan Agent) and Lenders and no Credit Party
shall have rights as a third party beneficiary of any of the
provisions hereof. In performing their respective functions
and duties under this Agreement, Agent and Bid Rate Loan
Agent shall each act solely as agent of Lenders and does
not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or
for any Credit Party. In acting as Bid Rate Loan Agent
hereunder, Company shall not be entitled to the benefits
accorded by this Section 8.
8.2. Powers; General Immunity
A. Duties Specified.
Each Lender irrevocably authorizes Agent and Bid Rate
Loan Agent to take such action on such Lender s behalf and
to exercise such powers hereunder and under the other
instruments and agreements referred to herein as are
specifically delegated to Agent or Bid Rate Loan Agent by
the terms hereof and thereof, together with such powers as
are reasonably incidental thereto. Each of Agent and Bid
Rate Loan Agent shall have only those duties and
responsibilities that are expressly specified in this
Agreement and may perform such duties by or through its
agents or employees. Neither Agent nor Bid Rate Loan
Agent shall have by reason of this Agreement any fiduciary
relationship in respect of any Lender; and nothing in this
Agreement, expressed or implied, is intended to or shall be
so construed as to impose upon Agent or Bid Rate Loan
Agent any obligations in respect of this Agreement or the
other instruments and agreements referred to herein except
as expressly set forth herein or therein.
B. No Responsibility for Certain Matters.
Neither Agent nor Bid Rate Loan Agent shall be
responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any other Loan Document
or Letters of Credit or for any representations, warranties,
recitals or statements made herein or therein or made in any
written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or
made by Agent or Bid Rate Loan Agent to Lenders or by or
on behalf of any Credit Party to any Lender or be required
to ascertain or inquire as to the performance or observance
of any of the terms, conditions, provisions, covenants or
agreements contained herein or therein or as to the use of
the proceeds of the Loans or of the existence or possible
existence of any Event of Default or Potential Event of
Default. Anything contained in this Agreement to the
contrary notwithstanding, neither Agent not Bid Rate Loan
Agent shall have any liability arising from confirmations of
the amount of outstanding Loans or Letters of Credit.
C. Exculpatory Provisions.
Neither Agent nor Bid Rate Loan Agent, or any of its
respective officers, directors, employees or agents, shall be
liable to Lenders for any action taken or omitted hereunder
or in connection herewith (including, without limitation,
any act or omission under this Agreement) by Agent or Bid
Rate Loan Agent except to the extent caused by its
respective gross negligence or willful misconduct. If Agent
or Bid Rate Loan Agent, as the case may be shall request
instructions from Lenders with respect to any act or action
(including the failure to take an action) in connection with
this Agreement or the other instruments or agreements
referred to herein, Agent or Bid Rate Loan Agent, as the
case may be, shall be entitled to refrain from such act or
taking such action unless and until Agent or Bid Rate Loan
Agent shall have received instructions from Requisite
Lenders. Without prejudice to the generality of the
foregoing, (i) Agent and Bid Rate Loan Agent shall be
entitled to rely, and shall be fully protected in relying, upon
any communication, instrument or document believed by it
to be genuine and correct and to have been signed or sent
by the proper person or persons, and shall be entitled to rely
and shall be protected in relying on opinions and judgments
of attorneys (who may be attorneys for one or more of the
Credit Parties and their respective Subsidiaries),
accountants, experts and other professional advisors
selected by it; and (ii) no Lender shall have any right of
action whatsoever against Agent or Bid Rate Loan Agent as
a result of Agent or Bid Rate Loan Agent acting or (where
so instructed) refraining from acting under this Agreement
or the other instruments and agreements referred to herein
in accordance with the instructions of Requisite Lenders.
Agent and Bid Rate Loan Agent shall be entitled to refrain
from exercising any power, discretion or authority vested in
it under this Agreement or the other instruments and
agreements referred to herein unless and until it has
obtained the instructions of Requisite Lenders.
D. Agent and Bid Rate Loan Agent Entitled to Act as
Lenders.
The agency hereby created shall in no way impair or affect
any of the rights and powers of, or impose any duties or
obligations upon, Agent or Bid Rate Loan Agent in its
individual capacity as a Lender hereunder. With respect to
its respective participation in the Loans, Agent and Bid
Rate Loan Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same
as though it were not performing the duties and functions
delegated to it hereunder and the term Lender or Lenders
or any similar term shall, unless the context clearly
otherwise indicates, include Agent and Bid Rate Loan
Agent in its respective individual capacity. Agent and Bid
Rate Loan Agent and their respective Affiliates may accept
deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business
with any Credit Party or any Affiliate of any Credit Party as
if it were not performing the duties specified herein, and
may accept fees and other consideration from any Credit
Party for services in connection with this Agreement and
otherwise without having to account for the same to
Lenders.
8.3. Representations and Warranties; No Responsibility
For Appraisal of Creditworthiness
Each Lender represents and warrants that it has made its
own independent investigation of the financial condition
and affairs of Company in connection with the making of
the Loans hereunder and has made and shall continue to
make its own appraisal of the creditworthiness of
Company. Neither Agent nor Bid Rate Loan Agent shall
have any duty or responsibility either initially or on a
continuing basis to make any such investigation or any
such appraisal on behalf of Lenders or to provide any
Lender with any credit or other information with respect
thereto whether coming into its possession before the
making of the Loans, or any time or times thereafter and
neither Agent nor Bid Rate Loan Agent shall have any
responsibility with respect to the accuracy of or the
completeness of the information provided to Lenders.
8.4. Right to Indemnity
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify Agent and Bid Rate Loan Agent to the
extent that Agent or Bid Rate Loan Agent shall not have
been reimbursed by Company, for and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without
limitation, counsel and legal assistants fees and
disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or
asserted against Agent or Bid Rate Loan Agent in
performing its duties hereunder or under the other
instruments and agreements referred to herein in its
capacity as Agent or Bid Rate Loan Agent in any way
relating to or arising out of this Agreement or such
instruments and agreements; provided that no Lender shall
be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from Agent s or Bid
Rate Loan Agent s gross negligence or willful misconduct.
If any indemnity furnished to Agent or Bid Rate Loan
Agent for any purpose shall, in the opinion of Agent or Bid
Rate Loan Agent, as the case may be, be insufficient or
become impaired, Agent or Bid Rate Loan Agent may call
for additional indemnity and cease, or not commence, to do
the acts indemnified against until such additional indemnity
is furnished.
8.5. Registered Person Treated as Owner
Agent may deem and treat each respective Person listed as
a Lender in the Register as the owner of the corresponding
Loan listed therein for all purposes hereof unless and until a
written notice of the assignment or transfer thereof shall
have been filed with Agent and recorded in the Register.
Any request, authority or consent of any Person or entity
who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender
shall be conclusive and binding on any subsequent
transferee or assignee of the corresponding Loan.
8.6. Successor Agent
Agent may resign at any time by giving thirty days prior
written notice thereof to Lenders and Company, and Agent
may be removed at any time with or without cause by an
instrument or concurrent instruments in writing delivered to
Company, Agent and signed by Requisite Lenders. Upon
any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five days
notice to Company, to appoint a successor Agent. Upon
the acceptance of any appointment as an Agent hereunder
by a successor Agent that successor Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Agent and
the retiring or removed Agent shall be discharged from its
duties and obligations under this Agreement. After any
retiring or removed Agent s resignation or removal
hereunder as Agent, the provisions of this Section 8 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
SECTION 9.
MISCELLANEOUS
9.1. Assignments and Participations in Loans
Each Lender shall have the right at any time, to (y) sell,
assign, transfer or negotiate all or any part of any Loan or
Loans made by it or its Commitments, its participations in
the Letters of Credit or any other interest herein or any
other Obligations owed to it, to any Person or (z) sell
participations in all or any part of any Loan or Loans made
by it or its Commitments, its participations in the Letters of
Credit or any other interest herein or any other Obligations
owed to it, to any Person; provided that (i) no participation
or assignment shall, without the consent of Company,
require Company to file a registration statement with the
Securities and Exchange Commission or apply to qualify
the Loans under the blue sky law of any state; (ii) in the
case of an assignment, such assignment may (a) be
assigned in any amount to another Lender or an Affiliate of
such Lender or another Lender with the giving of notice to
Company and Agent or (b) be otherwise assigned with the
consent of Company (which consent shall not be
unreasonably withheld) and the consent of Agent in an
aggregate amount of at least $10,000,000; provided further,
that, to the extent of such assignment in either clause (a) or
(b), the assigning Lender shall be relieved of its obligations
with respect to such Commitments as it has so assigned;
provided still further that any assignment shall become
effective five Business Days after Agent s receipt of (x) a
written notice of such assignment from the assigning
Lender and the assignee Lender and (y) a processing and
recordation fee of $2,500, together with a copy of the
assignment agreement, in connection with Agent s
recording of such sale, assignment, transfer or negotiation;
provided still further that all assignments pursuant to this
subsection 9.1 shall be effected pursuant to an assignment
agreement between the assigning Lender and the assignee
Lender substantially in the form of Exhibit XIV annexed
hereto; and (iii) in the case of a participation, the holder of
any such participation, other than an Affiliate of such
Lender, shall not be entitled to require such Lender to take
or omit to take any action hereunder, except action directly
affecting the extension of the regularly scheduled maturity
of any portion of the principal amount of or interest on a
Loan or any fees related thereto allocated to such
participation, or a reduction of the principal amount of or
the rate of interest payable on the Loans or any fees related
thereto allocated to such participation, and all amounts
payable by Company hereunder shall be determined as if
that Lender had not sold such participation. In the case of
an assignment authorized under this subsection 9.1, the
assignee shall have, to the extent of such assignment, the
same rights, benefits and obligations as it would if it were a
Lender, including, without limitation, the right to
indemnification pursuant to subsection 9.3 and the right to
approve or disapprove actions which, in accordance with
the terms hereof, require the approval of the Requisite
Lenders and the assigning Lender shall be relieved of its
obligations hereunder with respect to its Commitment, or,
as the case may be, the assigned portion thereof. In the
event of an assignment hereunder the Commitments
hereunder shall be modified to reflect the Commitment of
such assignee and, if any such assignment occurs while any
Loan is outstanding, Agent shall, no later than five
Business Days following receipt of notice thereof, record
such assignment in the Register as provided in subsection
2.1.F and such assignment shall become effective upon
such recordation. In the event of an assignment of Notes,
upon surrender of the assigning Lender s Notes, Company
shall issue and deliver to Agent for delivery to such
assignee and to assigning Lender, if applicable, new Notes
pursuant to subsection 2.1.F as necessary to reflect the new
Commitments of Lender and of assignee. Each Lender
may furnish any information concerning Company and its
Subsidiaries in the possession of that Lender from time to
time to assignees and participants (including prospective
assignees and participants), subject to subsection 9.19.
Company hereby acknowledges and agrees that any
participation will give rise to a direct obligation of
Company to the participant and the participant shall for
purposes of subsections 2.3.G, 2.4.G, 2.8.A, 2.8.B, 2.8.C,
2.9, 2.10, 9.4 and 9.5 be considered to be a Lender ;
provided that no participant shall be entitled to receive any
greater amount pursuant to subsections 2.3, 2.4, 2.8 or 2.9
than the transferor Lender would have been entitled to
receive in respect of the amount of the participation
effected by such transferor Lender to such participant had
no such participation occurred.
Except as otherwise provided in the immediately preceding
paragraph, no Lender shall, as between Company and such
Lender, be relieved of any of its obligations hereunder as a
result of any sale, assignment, transfer or negotiation of, or
granting of participations in, all or any part of the Loans or
other Obligations owed to such Lender.
9.2. Expenses
Whether or not the transactions contemplated hereby shall
be consummated, Company agrees to pay promptly (i) all
the actual and reasonable costs and expenses of preparation
of the Loan Documents and all the costs of furnishing all
opinions by counsel for the Credit Parties (including
without limitation any opinions requested by Lenders as to
any legal matters arising hereunder), and of the Credit
Parties perfor- mance of and compliance with all
agreements and conditions contained herein and in the
other Loan Documents on its part to be performed or
complied with; (ii) the reasonable fees, expenses and
disbursements of counsel to Agent in connection with the
negotiation, preparation, execution and administration of
the Loan Documents and the Loans and any consents,
amendments, waivers or other modifications hereto or
thereto and any other documents or matters requested by
any Credit Party; (iii) all other actual and reasonable costs
and expenses (without duplication) incurred by Agent
(including reasonable fees, expenses and disbursements of
counsel) in connection with the negotiation, preparation
and execution of the Loan Documents, the issuance of the
Letters of Credit and the transactions contemplated hereby
and thereby, including the arrangement by Agent for one or
more Lenders (as defined in the Commitment Letter) to
participate in the Bank Financing (as defined in the
Commitment Letter), but excluding the costs and expenses
of such Lenders (other than Bankers) and their counsel in
connection with such arrangements; and (iv) after the
occurrence of an Event of Default, all costs and expenses
(including reasonable fees, expenses and disbursements of
counsel, including allocated costs of internal counsel, and
costs of settlement) incurred by Lenders in enforcing any
Obligations of or in collecting any payments due from any
Credit Party hereunder or under the Notes or the other Loan
Documents or any Letter of Credit by reason of such Event
of Default or in connection with any refinancing or
restructuring of the credit arrangements provided under this
Agreement in the nature of a work-out or of any
insolvency or bankruptcy proceedings.
9.3. Indemnity
In addition to the payment of expenses pursuant to
subsection 9.2, whether or not the transactions
contemplated hereby shall be consummated, Company
agrees to indemnify, pay and hold Agent, Bid Rate Loan
Agent, Trustee and Lenders and the officers, directors,
employees, agents, and affiliates of Agent, Bid Rate Loan
Agent, Trustee and Lenders (collectively called the
Indemnitees ) harmless from and against, any and all other
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever (including, without
limitation, the reasonable and documented fees and
disbursements of counsel and its legal assistants for such
Indemnitee in connection with any investigative,
administrative or judicial proceeding commenced or
threatened, whether or not such Indemnitee shall be
designated a party thereto), that may be imposed on,
incurred by, suffered by or asserted against that Indemnitee,
in any manner relating to or arising out of this Agreement
or the other Loan Documents, the statements contained in
the commitment letter delivered by any Lender, Lenders
agreement to make the Loans hereunder, Issuing Lenders
agreement to issue Letters of Credit, the use or intended use
of the proceeds of any of the Loans or any Letter of Credit
or under or on account of any Environmental Law or
Release of any Hazardous Materials (the indemnified
liabilities ); provided that Company shall not have any
obligation to an Indemnitee hereunder with respect to
indemnified liabilities arising from gross negligence or
willful misconduct of that Indemnitee (treating, for this
purpose only, any Lender and its directors, officers,
employees, agents and affiliates as a single Indemnitee).
To the extent that the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public
policy, Company shall contribute the maximum portion that
they are permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all indemnified liabilities
incurred by the Indemnitees or any of them.
9.4. Set Off
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such
rights, upon the occurrence and continuation of any Event
of Default, each Lender is hereby authorized by Company
at any time or from time to time, without notice to
Company, or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and
to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of
deposit, whether matured or unmatured but not including
trust accounts) and any other Indebtedness at any time held
or owing by such Lender to or for the credit or the account
of Company, against and on account of the obligations and
liabilities of Company to such Lender under this
Agreement, including, without limitation, all claims of any
nature or description arising out of or connected with this
Agreement, the Notes or any other Loan Document,
regardless of whether or not (a) such Lender shall have
made any demand hereunder or (b) the principal of or the
interest on the Loans or Notes, amounts in respect of the
Letters of Credit or any other Obligations of Company in
respect of and other amounts due hereunder shall have
become due and payable pursuant to Section 7 and although
said obligations and liabilities, or any of them, may be
contingent or unmatured.
9.5. Ratable Sharing
Lenders agree among themselves that if any of them shall,
whether by voluntary payment, by realization upon
security, through the exercise of any right of counterclaim,
cross action, set-off, bankers lien, by enforcement of any
right under the Loan Documents or otherwise or as
adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction
of a proportion of the aggregate amount of principal and
interest then due in respect of any Loans held by such
Lender or amounts payable in respect of Letters of Credit or
the other Obligations, the amount then due to such Lender
with respect to any participation therein or amounts due to
such Lender in respect of facility fees or commitment fees
hereunder (collectively, the Aggregate Amounts Due to
such Lender), which is greater than the proportion received
by any other Lender in respect of the Aggregate Amounts
Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (y) notify each other
Lender and Agent of such receipt and (z) purchase
participations (which it shall be deemed to have purchased
from each seller simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by
Lenders in proportion to the Aggregate Amounts Due them;
provided that if all or part of such proportionately greater
payment received by such purchasing Lender is thereafter
recovered from such Lender, those purchases shall be
rescinded and the purchase prices paid for such
participations shall be returned to such Lender to the extent
of such recovery, with interest only to the extent actually
paid over by such purchasing Lender. Company expressly
consents to the foregoing arrangement and agree that any
holder of a participation so purchased and any other
subsequent holder of a participation in any Loan otherwise
acquired may exercise any and all rights of bankers lien,
set-off or counterclaim with respect to any and all monies
owing by Company to that holder as fully as if that holder
were a Lender in the amount of the participation held by
that holder.
9.6. Amendments and Waivers
No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, the Guaranties
or the Pledge Agreement, or consent to any departure by
any Credit Party therefrom, shall in any event be effective
without the written concurrence of Requisite Lenders;
except that any amendment, modification, termination, or
waiver of: the amount of the Commitments or the principal
amount of the Loans or payments or prepayments by
Company in respect thereof (other than the order of
application of proceeds pursuant to subsection 2.6); each
Lender s Pro Rata Share; the definitions of Requisite
Lenders , Scheduled Term Loans Principal Payments ; any
provision expressly requiring the approval or concurrence
of all Lenders; the scheduled maturity dates of the Loans;
the dates on which interest is payable; decreases in the
interest rates borne by the Loans; the dates and amount of
fees payable hereunder; the maximum duration of interest
periods; the termination of the Pledge Agreement or the
release of the collateral pledged thereunder or the release of
all or substantially all of the Obligations of the Guarantors
(except as expressly permitted herein and therein); and the
provisions contained in subsections 7.1 and 9.6 shall be
effective only if evidenced by a writing signed by or on
behalf of all Lenders. Any amendment, modification,
termination or waiver of any of the provisions contained in
Section 3 shall be effective only if evidenced by a writing
signed by or on behalf of Requisite Lenders. No
amendment, modification, termination or waiver of any
provision of Section 8 hereof shall be effective without the
written concurrence of Agent and no amendment,
modification, termination or waiver of Section 10 hereof
shall be effective without the written concurrence of
Trustee. Agent may, but shall have no obligation to, with
the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that
Lender. Any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which
it was given. No notice to or demand on Company in any
case shall entitle Company to any other or further notice or
demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent
effected in accordance with this subsection 9.6 shall be
binding upon each Lender at the time listed in the Register,
each future Lender, and if signed by Company, on
Company.
9.7. Independence of Covenants
All covenants hereunder shall be given independent effect
so that if a particular action or condition is not permitted by
any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitations
of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such
action is taken or condition exists.
9.8. Notices
Unless otherwise specifically provided herein, any notice
or other communica- tion herein required or permitted to
be given shall be in writing and may be personally served,
telecopied or sent by United States mail or courier service
and shall be deemed to have been given when delivered in
person, receipt of telecopy or four Business Days after
depositing it in the United States mail, registered or
certified, with postage prepaid and properly addressed;
provided that notices to Agent shall not be effective until
received. For the purposes hereof, the addresses of the
parties hereto (until notice of a change thereof is delivered
as provided in this subsection 9.8) shall be as set forth
under each party s name on the signature pages hereof. In
connection with the solicitation and making of Bid Rate
Loans in accordance with subsection 2.1.E, Agent, Bid
Rate Loan Agent, Trustee and each Lender shall be entitled
to rely upon all telephonic notices without awaiting receipt
of written versions of such notices and Company shall hold
Agent, Bid Rate Loan Agent, Trustee and each Lender
harmless from, and shall indemnify Agent, Bid Rate Loan
Agent and Trustee against, any loss, cost or expense
ensuing from any such reliance.
9.9. Survival of Warranties and Certain Agreements
A. All agreements, representations and warranties made
herein shall survive the execution and delivery of this
Agreement, the making of the Loans hereunder, the
issuances of the Letters of Credit and the execution and
delivery of the Notes.
B. Notwithstanding anything in this Agreement or
implied by law to the contrary, the agreements of Company
set forth in subsections 2.3.G, 2.4.G, 2.8.A, 2.8.B, 2.8.C,
2.9, 9.2, and 9.3 and the agreements of Lenders set forth in
subsections 8.2.C, 8.4, 9.4 and 9.5 shall survive the
payment of the Loans and the Notes, the termination of the
Letters of Credit and the termination of this Agreement.
9.10. Failure or Indulgence Not Waiver; Remedies
Cumulative
No failure or delay on the part of any Lender or issuer of
any Letter of Credit in the exercise of any power, right or
privilege hereunder or under the Notes or the Letters of
Credit shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege. All rights
and remedies existing under this Agreement and the Notes,
the Letters of Credit and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies
otherwise available.
9.11. Marshalling; Payments Set Aside
Neither any Lender nor Agent shall be under any
obligation to marshal any assets in favor of any Credit
Party or any other Person or against or in payment of any or
all of the Obligations. To the extent that Company makes a
payment or payments to Agent or Lenders (or to Agent for
the benefit of Lenders) or Agent or Lenders or exercise
their rights of setoff, and such payment or payments or the
proceeds of setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal
law, common law or equitable cause, then to the extent of
such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such
enforcement or set-off had not occurred.
9.12. Severability
In case any provision in or obligation under this
Agreement or the Notes 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.
9.13. Lenders Obligations Several; Independent Nature of
Lenders Rights
The obligation of each Lender hereunder is several and no
Lender shall be responsible for the obligation or
commitment of any other Lender hereunder. Nothing
contained in any Loan Document and no action taken by
Lenders pursuant hereto or thereto shall be deemed to
constitute Lenders to be a partnership, an association, a
joint venture or any other kind of entity. The amounts
payable at any time hereunder to each Lender shall be a
separate and independent debt, and, subject to subsection
9.5, each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
9.14. Headings
Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other
purpose or be given any substantive effect.
9.15. Applicable Law
This Agreement and the other Loan Documents shall be
governed by, and shall be construed and enforced in
accordance with, the internal laws of the State of New
York, without regard to conflicts of laws principles.
9.16. Successors and Assigns; Subsequent Lenders
This Agreement shall be binding upon the parties hereto
and their respective successors and assigns and shall inure
to the benefit of the parties hereto and the successors and
assigns of Lenders. The terms and provisions of this
Agreement shall inure to the benefit of any assignee or
transferee of the Loans, and in the event of such transfer or
assignment, the rights and privileges herein conferred upon
Lenders shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and
conditions hereof. Company s rights or any interest therein
hereunder may not be assigned without the written consent
of all Lenders. Lenders rights of assignment are subject to
subsection 8.2.
9.17. Consent to Jurisdiction and Service of Process
All judicial proceedings brought against Company arising
out of or relating to this Agreement, any Note or other Loan
Document or any Obligation may be brought in any state or
federal court of competent jurisdiction in the State of New
York and by execution and delivery of this Agreement,
Company accepts for itself and in connection with its
properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts and waives any defense
of forum non conveniens, and irrevocably agrees (subject to
appeal) to be bound by any judgment rendered thereby in
connection with this Agreement, such Note, such other
Loan Document or such Obligation. Company designates
and appoints the Controller and Chief Financial Officer of
Company, at the address set forth under Company s name
on the signature page hereof and such other Persons as may
hereafter be selected by Company irrevocably in writing to
so serve, as its agent to receive on its behalf service of all
process in any such proceedings in any such court, such
service being hereby acknowledged by Company to be
effective and binding service in every respect. A copy of
any such process so served shall be mailed by registered
mail to Company at its address provided in the applicable
signature page hereto, except that unless otherwise
provided by applicable law, any failure to mail such copy
shall not affect the validity of service of process. If any
agent appointed by Company refuses to accept service,
Company hereby agrees that service upon it by mail shall
upon receipt constitute sufficient notice. Nothing herein
contained shall affect the right to serve process in any other
manner permitted by law or shall limit the right of any
Lender to bring proceedings against Company in the courts
of any other jurisdiction.
9.18. Waiver of Jury Trial
Each of the parties to this Agreement hereby irrevocably
waives all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement,
the Loan Documents or the transactions contemplated
hereby or thereby.
9.19. Confidentiality
Lenders and participants shall hold all non-public
information obtained pursuant to the requirements of this
Agreement which has been identified as such by Company
in accordance with its customary procedure for handling
confidential information of this nature and in accordance
with safe and sound banking practices and in any event
may make disclosures (x) reasonably required by any bona
fide assignee, transferee or participant who has agreed to
comply with this subsection 9.19 as if it were a Lender
hereunder in connection with the contemplated assignment
or transfer of any Loans or participation therein or (y) as
required or requested by any governmental agency or
representative thereof or pursuant to legal process; provided
that, unless specifically prohibited by applicable law or
court order, each Lender shall notify Company of any
request by any governmental agency or representative
thereof (other than any such request in connection with any
examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such
non-public information prior to disclosure of such
information, and provide Company with an opportunity to
respond; provided further that in no event shall any Lender
be obligated or required to return any materials furnished
by Company or any of its Subsidiaries.
9.20. Counterparts; Effectiveness
This Agreement and any amendments, waivers, consents,
or supplements may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and
delivered shall be deemed an original, but all such
counterparts, together shall constitute but one and the same
instrument. This Agreement shall become effective upon
the execution of a counterpart hereof by each of the parties
hereto and written or telephonic notification of such
execution and authorization of delivery thereof has been
received by Company and Agent.
SECTION 10.
TRUSTEE
10.1. Appointment as Trustee
Company may appoint Continental Bank to act as Trustee
hereunder and Continental Bank may accept or decline such
appointment. In the event that Continental Bank accepts
such appointment, it will accept solely in its capacity as
Trustee, subject to the terms and conditions of this Section
10, to follow the procedures set forth in subsection 2.1.E.
Each Lender shall be deemed to have authorized
Continental Bank to act in the capacity of Trustee as agent
for such Lender in accordance with the terms hereof. In
acting as Trustee hereunder, Company shall not be entitled
to the benefits accorded by this Section 10.
10.2. Limitation on Duties
Trustee shall have no duties or responsibilities except those
expressly specified in this Agreement and those duties and
liabilities shall be subject to the limitations and
qualifications set forth herein. The duties of Trustee shall
be mechanical and administrative in nature.
10.3. Limitation on Liabilities
Neither Trustee nor any of its directors, officers or
employees shall be liable for any action taken or omitted
(whether or not such action taken or omitted is within or
without Trustee s responsibilities and duties expressly
specified in this Agreement) under or in connection with
this Agreement or any other instrument or document
executed in connection herewith, except to the extent
caused by its gross negligence or willful misconduct.
Without prejudice to the generality of the foregoing, neither
Trustee nor any of its directors, officers or employees shall
be responsible for, or have any duty to inquire into (a) the
genuineness, execution, validity, effectiveness, or
sufficiency of (i) any Bid Rate Loan Quote Request, Bid
Rate Loan Quote, Notice of Bid Rate Loan Borrowing or
Invitation for Bid Rate Loan Quotes, or (ii) any document
or instrument furnished pursuant to or in connection with
this Agreement, or (b) any failure of any party to this
Agreement to receive any communication sent.
10.4. Trustee s Action on Communications
Trustee shall be entitled to receive, and shall be fully
protected in acting upon, any communication in whatever
form believed by Trustee in good faith to be genuine and
correct and to have been signed or sent or made by a proper
person or persons or entity. Trustee may consult counsel
and shall be entitled to act, and shall be fully protected in
any action taken in good faith, in accordance with advice
given by counsel. Trustee may employ agents and
attorneys-in-fact and shall not be liable for the default or
misconduct of any such agents or attorneys-in-fact selected
by Trustee with reasonable care. Trustee shall not be
bound to ascertain or inquire as to the performance or
observance of any of the terms, provisions or conditions of
this Agreement.
10.5. Continental Bank Entitled to Act as Lender
With respect to the Commitments of Continental Bank and
Loans made by Continental Bank hereunder, Continental
Bank shall have the same rights and powers and duties
under this Agreement as any other Lender and may exercise
such rights and duties as though it were not also acting as
Trustee hereunder. Continental Bank and its Affiliates may
accept deposits from, lend money to, and generally engage,
and continue to engage, in any kind of business with
Company as if Continental Bank were not also acting as
Trustee hereunder.
10.6. Successor Trustee
Trustee may resign at any time by giving at least thirty
days written notice thereof to Lenders and Company.
Upon any such notice of resignation, Lenders with the
consent of the Company (which consent shall not be
unreasonably withheld) shall have the right to appoint a
successor Trustee. If no successor Trustee shall have been
appointed by Lenders and accepted such appointment
within thirty days after the retiring Trustee s giving notice
of resignation, then the retiring Trustee may, but shall not
be required to, on behalf of the Lenders, appoint a
successor Trustee.WITNESS the due execution hereof by
the respective duly authorized officers of the undersigned
as of the date first written above.
COMPANY:
DANAHER CORPORATION
By: /s/ Patrick W. Allender
Title: Chief Financial Officer and Secretary
Notice Address:
DANAHER CORPORATION
1250 24th Street, N.W.
Washington, D.C. 20037
Attention: Patrick W. Allender
Telecopier: (202) 828-0860
with copies to:
SKADDEN, ARPS, SLATE, MEAGHER &
FLOM
919 Third Avenue
New York, New York 10022
Attention: Scott V. Simpson, Esq.
Telecopier: (212) 735-2001
LENDERS:
BANKERS TRUST COMPANY,
individually, and as Agent
By: /s/
Title: Vice President
Notice Address:
BANKERS TRUST COMPANY
Operations
280 Park Avenue
14th Floor
New York, New York 10017
Attention: Robert R. Telesca
with copies to:
BANKERS TRUST COMPANY
Operations
280 Park Avenue
14th Floor
New York, New York 10017
Attention: Fred J. Angelo
Telecopier: (212) 850-2605
O MELVENY & MYERS
153 East 53rd Street
54th Floor
New York, New York 10022-4611
Attention: Marc P. Hanrahan, Esq.
THE BANK OF NOVA SCOTIA
By: /s/ J. Alan Edwards
Title: Assistant General Manager
Notice Address:
THE BANK OF NOVA SCOTIA
One Liberty Plaza
New York, New York 10066
Attention: Jim Trimble
Telecopier: (212) 225-5090
THE BANK OF TOKYO TRUST COMPANY
By: /s/ S.W. Starr
Title: Vice President and Manager
Notice Address:
THE BANK OF TOKYO TRUST COMPANY
1825 K Street, N.W.
Suite 703
Washington, D.C. 20006
Attention: Stanley W. Starr
Telecopier: (202) 293-3416
THE CHASE MANHATTAN BANK, NA
By: /s/
Title: Vice President
Notice Address:
THE CHASE MANHATTAN BANK, NA
One Chase Manhattan Plaza
New York, New York 10081
Attention: Brian McDonagh
Telecopier: (212) 552-5189
CONTINENTAL BANK, NATIONAL
ASSOCIATION in its individual
corporate capacity
By: /s/
Title: Vice President
Notice Address as Lender:
CONTINENTAL BANK, NATIONAL
ASSOCIATION
231 S. LaSalle Street
Chicago, Illinois 60697
Attention: Timothy J. Pepowski
Telecopier: (312) 828-3864
FOR BID RATE LOAN QUOTE
REQUESTS:
MR. WILLIAM M. LUPOLETTI
Phone: (312) 828-1946
Fax: (312) 346-3575
or
(313) 372-3206
CREDIT SUISSE
By: /s/ Thomas N. George
Title: Vice President
By: /s/ Jay Hall
Title: Vice President
Notice Address:
CREDIT SUISSE
100 Wall Street
New York, New York 10005
Attention: Jay Chall
Telecopier: (212) 943-1598
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/
Title: Vice President
Notice Address:
THE FIRST NATIONAL BANK OF
CHICAGO
1776 I Street, N.W.
Suite 800
Washington, D.C. 20006
Attention: Ted Wozniak
Telecopier: (202) 833-6677
THE TORONTO-DOMINION BANK
By: /s/
Title: Director
Notice Address:
THE TORONTO-DOMINION BANK
31 West 52nd Street
New York, New York 10019
Attention: Eric I. Skillins
Attention: Duncan Robertson
Telecopier: (212) 262-1926