Exhibit 4.1
$75,000,000
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
among
THE INTERLAKE CORPORATION,
VARIOUS BANKS,
THE CHASE MANHATTAN BANK,
as ADMINISTRATIVE AGENT
and
THE FIRST NATIONAL BANK OF CHICAGO,
as DOCUMENTATION AGENT
----------------------------------
Dated as of September 27, 1989
and
Amended and Restated as of
July 31, 1998
----------------------------------
TABLE OF CONTENTS
SECTION PAGE
Section 1. Amount and Terms of Credit......................................................................1
1.01 The Commitments.................................................................................1
1.02 Minimum Amount of Each
Borrowing.........................................................................................................1
1.03 Notice of Borrowing.............................................................................1
1.04 Disbursement of Funds...........................................................................2
1.05 Notes...........................................................................................2
1.06 Conversions.....................................................................................3
1.07 Pro Rata Borrowings.............................................................................3
1.08 Interest........................................................................................3
1.09 Interest Periods................................................................................4
1.10 Increased Costs, Illegality, etc................................................................5
1.11 Compensation....................................................................................7
Section 2. Letters of Credit...............................................................................7
2.01 Letters of Credit...............................................................................7
2.02 Minimum Stated Amount...........................................................................8
2.03 Letter of Credit Requests.......................................................................8
2.04 Letter of Credit Participations.................................................................8
2.05 Agreement to Repay Letter of Credit Drawings...................................................11
2.06 Increased Costs................................................................................12
Section 3. Fees; Commitment; Reductions of Commitments....................................................13
3.01 Fees...........................................................................................13
3.02 Voluntary Reduction of Commitments.............................................................13
3.03 Mandatory Reduction of Commitments.............................................................14
Section 4. Prepayments; Payments..........................................................................14
4.01 Voluntary Prepayments..........................................................................14
4.02 Mandatory Prepayments..........................................................................14
4.03 Method and Place of Payment....................................................................15
4.04 Net Payments...................................................................................16
Section 5. Conditions Precedent...........................................................................17
5.01 Conditions Precedent to the Third Restatement Effective Date...................................17
5.02 Conditions to All Credit Events................................................................19
Section 6. Representations, Warranties and Agreements.....................................................20
6.01 Organizational Status..........................................................................20
6.02 Power and Authority............................................................................20
6.03 No Violation...................................................................................20
6.04 Governmental Approvals.........................................................................21
6.05 Pledge Agreements..............................................................................21
6.06 Other Security Documents.......................................................................21
6.07 Financial Statements; Financial Condition; Undisclosed Liabilities, etc........................21
6.08 Litigation.....................................................................................22
6.09 True and Complete Disclosure...................................................................23
6.10. Use of Proceeds; Margin Regulations............................................................23
6.11 Tax Returns and Payments.......................................................................23
6.12 Compliance with ERISA..........................................................................23
6.13 Capitalization.................................................................................24
6.14 Subsidiaries...................................................................................25
6.15 Compliance with Statutes, etc..................................................................25
6.16 Investment Company Act.........................................................................26
6.17 Public Utility Holding Company Act.............................................................26
6.18 Patents, Licenses, Franchises and Formulas.....................................................26
6.19 Restrictions on Subsidiaries...................................................................26
6.20 Properties.....................................................................................27
6.21 Existing and Continued Security Interests......................................................27
Section 7. Affirmative Covenants..........................................................................27
7.01 Information Covenants..........................................................................27
7.02 Books, Records and Inspections.................................................................29
7.03 Maintenance of Property, Insurance.............................................................30
7.04 Corporate Franchises...........................................................................30
7.05 Compliance with Statutes, etc..................................................................30
7.06 ERISA..........................................................................................30
7.07 End of Fiscal Years; Fiscal Quarters...........................................................31
7.08 Performance of Obligations.....................................................................31
7.09 Inactive Subsidiaries..........................................................................31
Section 8. Negative Covenants.............................................................................31
8.01 Liens..........................................................................................31
8.02 Consolidation, Merger, Sale of Assets, etc.....................................................33
8.03 Distributions..................................................................................34
8.04 Leases.........................................................................................35
8.05 Indebtedness...................................................................................36
8.06 Advances, Investments and Loans................................................................37
8.07 Transactions with Affiliates...................................................................39
8.08 Capital Expenditures...........................................................................39
8.09 Minimum Consolidated Net Worth.................................................................39
8.10 Minimum Interest Coverage Ratio................................................................39
8.11 Limitation on Voluntary Payments and Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements, etc................................................................................39
8.12 Limitation on Restrictions on Subsidiary Dividends, Other Distributions and on
Granting of Liens..............................................................................40
8.13 Limitation on Issuances of Capital Stock by Subsidiaries.......................................40
8.14 Business.......................................................................................40
Section 9. Events of Default..............................................................................41
9.01 Payments.......................................................................................41
9.02 Representations, etc...........................................................................41
9.03 Covenants......................................................................................41
9.04 Default Under Other Agreements.................................................................41
9.05 Bankruptcy, etc................................................................................41
9.06 ERISA..........................................................................................42
9.07 Pledge Agreements..............................................................................42
9.08 Other Security Documents.......................................................................42
9.09 Guaranty.......................................................................................43
9.10 Judgments......................................................................................43
9.11 Change in Control..............................................................................43
9.12 Environmental Liabilities......................................................................43
Section 10. Definitions and Accounting Terms...............................................................44
10.01 Defined Terms..................................................................................44
Section 11. The Administrative Agent.......................................................................59
11.01 Appointment....................................................................................59
11.02 Nature of Duties...............................................................................60
11.03 Lack of Reliance on the Administrative Agent...................................................60
11.04 Certain Rights of the Administrative Agent.....................................................60
11.05 Reliance.......................................................................................61
11.06 Indemnification................................................................................61
11.07 The Administrative Agent in its Individual Capacity............................................61
11.08 Holders........................................................................................61
11.09 Resignation by the Administrative Agent........................................................62
Section 12. Miscellaneous..................................................................................62
12.01 Payment of Expenses, etc.......................................................................62
12.02 Right of Setoff................................................................................63
12.03 Notices........................................................................................63
12.04 Successors and Assigns.........................................................................64
12.05 No Waiver; Remedies Cumulative.................................................................67
12.06 Payments Pro Rata..............................................................................67
12.07 Calculations; Computations.....................................................................68
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE...............................................68
12.09 Counterparts...................................................................................69
12.10 Effectiveness..................................................................................69
12.11 Headings Descriptive...........................................................................69
12.12 Amendment or Waiver............................................................................69
12.13 Obligation to Make Payments in Dollars.........................................................70
12.14 Survival.......................................................................................70
12.15 Domicile of Loans..............................................................................70
12.16 Confidentiality................................................................................70
12.17 Amendment and Restatement......................................................................71
12.18 Conversion of Original Loans of Continuing Banks...............................................71
Schedule I Commitments
Schedule 2.01 Existing Letters of Credit
Schedule 6.07 Undisclosed Liabilities
Schedule 6.14 Subsidiaries
Schedule 6.15 Statutory, Regulatory and Environmental Matters
Schedule 6.18 Patents, Licenses, Franchises and Formulas
Schedule 8.01 Permitted Liens
Schedule 8.05 Existing Debt
Schedule 10.01(a) Mortgaged Properties
Schedule 10.01(b) Subsidiary Guarantors/Subsidiary Pledgors
Exhibit A Notice of borrowing
Exhibit B Note
Exhibit C Letter of Credit Request
Exhibit D Opinion Requested from the General Counsel of the Borrower
Exhibit E Consent and Reaffirmation
Exhibit F Assignment and Acceptance
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
September 27, 1989, and amended and restated as of May 28, 1992, as of December
22, 1997, and as of July 31, 1998, among THE INTERLAKE CORPORATION, a Delaware
corporation (the "Borrower"), THE CHASE MANHATTAN BANK (formerly Chemical Bank)
("Chase"), THE FIRST NATIONAL BANK OF CHICAGO ("First National," together with
Chase and the other financial institutions listed on the signature pages hereof,
and any future participating financial institutions permitted under Section
12.04, the "Banks"), Chase, acting in the capacity and to the extent described
in Section 11 as administrative agent (in such capacity, the "Administrative
Agent") and First National, as documentation agent (the "Documentation Agent").
All capitalized terms used herein shall have the meanings provided in Section
10.
Section 1. Amount and Terms of Credit.
1.01 The Commitments. Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees, at any time and from
time to time on and after the Third Restatement Effective Date and prior to the
Maturity Date, to make a revolving loan or revolving loans (each a "Loan" and,
collectively, the "Loans") to the Borrower, which Loans:
(i) shall, at the option of the Borrower, be Base Rate Loans
or Eurodollar Loans, provided that all Loans comprising the same
Borrowing shall at all times be of the same Type;
(ii) may be repaid and reborrowed in accordance with the
provisions hereof;
(iii) shall not exceed for any Bank at any time outstanding
that aggregate principal amount which equals the Commitment of such
Bank at such time; and
(iv) shall not exceed for the Banks at any time outstanding
that aggregate principal amount which, when added to the aggregate
principal amount of all Loans then outstanding plus all Letter of
Credit Outstandings, equals the Total Commitment.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Loans shall be not less than $2,000,000, provided
that Borrowings of Loans constituting Base Rate Loans may be made in amounts not
less than $1,000,000 (or, if less, the amount of the Total Unutilized
Commitment) but at no time shall there be outstanding more than ten Eurodollar
Loans.
1.03 Notice of Borrowing. Whenever the Borrower desires to
incur Loans hereunder on and after the Third Restatement Effective Date, the
Borrower shall give the Administrative Agent at its Notice Office at least one
Business Day's prior notice of each incurrence
of Base Rate Loans and at least three Business Days' prior notice of each
incurrence of Eurodollar Loans, provided that any such notice shall be deemed to
have been given on a certain day only if given before 12:00 Noon (New York time)
on such day. Each such notice (each a "Notice of Borrowing") shall be in the
form of Exhibit A, appropriately completed to specify the aggregate principal
amount of the Loans to be incurred pursuant to each such Borrowing being
requested, the date of such incurrence (which shall be a Business Day), whether
the Loans being made pursuant to each requested Borrowing are to be initially
maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Bank notice of such proposed incurrence, of such Bank's
proportionate share thereof, if any, and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
1.04 Disbursement of Funds. No later than 12:00 Noon (New York
time) on the date specified in each Notice of Borrowing, each Bank will make
available its pro rata portion of each Borrowing requested to be made on such
date to the Administrative Agent, in Dollars and in immediately available funds
at the Payment Office, and the Administrative Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available by
the Banks. Unless the Administrative Agent shall have been notified by any Bank
prior to the date of any such Borrowing that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of any such Borrowing
to be made on such date, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such date of such
Borrowing and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Bank,
the Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover on demand from such Bank or the Borrower, as
the case may be, (i) interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower until the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (x) if
recovered from such Bank, the overnight Federal Funds Rate for the first two
days and the Alternate Base Rate thereafter and (y) if recovered from the
Borrower, the then applicable rate for Base Rate Loans or Eurodollar Loans, as
the case may be, as determined in accordance with Section 1.08 plus (ii) in any
case, an amount equal to any losses incurred by the Administrative Agent or any
Bank (other than the Bank which failed to make its funds available) under any
Hedging Agreement or otherwise as a result of the failure of such Bank or the
Borrower to provide such amount as required in this Agreement. Nothing in this
Section 1.04 shall be deemed to relieve any Bank from its obligation to fulfill
its Commitment hereunder or to prejudice any rights which the Borrower may have
against any Bank as a result of any default by any Bank hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Bank to the Borrower shall be
evidenced by a promissory note duly executed and delivered to such Bank by the
Borrower substantially in the form of Exhibit B hereto (each a "Note" and
collectively the "Notes").
(b) The Note issued to each Bank shall (i) be payable to the
order of such Bank and be dated the Third Restatement Effective Date, (ii) be in
a stated principal amount equal to the Commitment of such Bank and be payable in
the outstanding principal amount of the Loans evidenced thereby from time to
time, (iii) mature on the Maturity Date, (iv) bear interest as provided in
Section 1.08 in respect of the Base Rate Loans or Eurodollar Loans, as the case
may be, evidenced thereby and (v) be entitled to the benefits of this Agreement
and all other Credit Documents.
(c) Each Bank will note on its internal records the amount of
each Loan made by it and each payment and conversion in respect thereof and will
prior to any transfer of any of its Notes endorse on the reverse side thereof
the outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect the Borrower's obligations in respect of such
Loans.
1.06 Conversions. The Borrower shall have the option to
convert on any Business Day, all or a portion equal to not less than $5,000,000
of the outstanding principal amount of Loans of one Type made to the Borrower
pursuant to one or more Borrowings into a Borrowing of the other Type, provided
that (i) except as otherwise provided in Section 1.10(b), Eurodollar Loans may
be converted into Base Rate Loans only on the last day of an Interest Period
applicable thereto and no such partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of Eurodollar Loans made pursuant to any
single Borrowing to less than $5,000,000, (ii) Base Rate Loans may only be
converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of conversion and (iii) no conversion pursuant to this
Section 1.06 shall result in a greater number of Borrowings of Eurodollar Loans
than is permitted under Section 1.02. Each such conversion shall be effected by
the Borrower giving the Administrative Agent at its Notice Office prior to 12:00
Noon (New York time) at least three Business Days' in the case of conversions
into Eurodollar Loans, or one Business Day's in the case of conversions into
Base Rate Loans, prior notice (each a "Notice of Conversion") specifying the
Loans to be so converted and, if to be converted into Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent
shall give each Bank prompt notice of any such proposed conversion affecting any
of its Loans.
1.07 Pro Rata Borrowings. All Loans under this Agreement shall
be incurred on and after the Third Restatement Effective Date from the Banks pro
rata on the basis of their respective Commitments. It is understood that no Bank
shall be responsible for the default by any other Bank of its obligation to make
Loans hereunder and that each Bank shall be obligated to make the Loans provided
to be made by it hereunder regardless of the failure of any other Bank to
fulfill its Commitment hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan made to the
Borrower from the Third Restatement Effective Date or if later the date of the
Borrowing thereof until maturity thereof (whether by acceleration or otherwise)
at a rate per annum which shall be the Applicable Margin plus the Alternate Base
Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan made to the Borrower from the
Third Restatement Effective Date or if later the date of the Borrowing thereof
until maturity thereof (whether by acceleration or otherwise) at a rate per
annum which shall, during each Interest Period applicable thereto, be the
Applicable Margin plus the Adjusted LIBOR Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall bear interest at a rate per annum
equal to the greater of (i) the rate which is 2% in excess of the rate then
borne by such Borrowings or (ii) the rate which is 2% plus the Applicable Margin
plus the Base Rate. Interest which accrues under this Section 1.08(c) shall be
payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on the last Business
Day of each March, June, September and December, (ii) in respect of each
Eurodollar Loan, on the last day of each Interest Period applicable thereto and,
in the case of an Interest Period in excess of three months, on the date
occurring three months after the first day of such Interest Period and (iii) in
respect of each Loan, on any prepayment or conversion (on the amount prepaid or
converted), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(e) The Administrative Agent shall determine the interest rate
applicable to Eurodollar Loans for each Interest Period and shall promptly
notify the Borrower and the Banks thereof. Each such determination shall, absent
manifest error, be final and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or on the third Business Day prior to the expiration
of an Interest Period applicable to such a Borrowing (in the case of subsequent
Interest Periods), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Borrowing, which Interest Period shall, at the
option of the Borrower, be either a one, two, three or six month period,
provided that: (i) all Loans comprising a Borrowing shall have the same Interest
Period; (ii) the initial Interest Period for any Borrowing of Eurodollar Loans
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day on
which the next
preceding Interest Period expires; (iii) if any Interest Period begins on a day
for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period, such Interest Period shall end on the last Business
Day of such calendar month; (iv) if any Interest Period would otherwise expire
on a day which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day; (v) no Interest Period
in respect of a Borrowing of Loans shall extend beyond the Maturity Date; and
(vi) no Interest Period for Eurodollar Loans may be selected at any time that a
Default or Event of Default then exists. If prior to the expiration of any
Interest Period, the Borrower has failed to elect or is prohibited from electing
a new Interest Period to be applicable to such Borrowing as provided above, if
such Borrowing is a Borrowing of Eurodollar Loans, the Borrower shall be deemed
to have elected to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
any Bank shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any date for the determination of an Adjusted LIBOR
Rate that, by reason of any changes arising after the Third Restatement
Effective Date affecting the London interbank market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Adjusted LIBOR Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder (A) with
respect to any Eurodollar Loan because of (x) any change (excluding any
change in gross or net income taxes imposed by any jurisdiction or
political subdivision or taxing authority having authority over such
Bank) since the Third Restatement Effective Date in any applicable law
or governmental rule, regulation, guideline, order or request (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 LIBOR Rate, as
the case may be, and/or (y) other circumstances affecting the London
interbank market or such Bank's position therein, without duplication;
or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has become unlawful by compliance by such Bank with any
law, governmental rule, regulation, guideline or order, or has become
impracticable as a result of a contingency occurring after the date of
this Agreement which materially and adversely affects the London
interbank
market or the position of such Bank in such market; then, and in any
such event, such Bank (or the Administrative Agent) shall on such date
give notice (by telephone confirmed in writing) to the Borrower, except
in the case of clause (i) above, to the Administrative Agent, of such
determination (which notice the Administrative Agent shall promptly
transmit to each Bank). Thereafter (x) in the case of clause (i) above
as such clause relates to Eurodollar Loans, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent
notifies the Borrower and the Banks that the circumstances giving rise
to such notice by the Administrative Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with
respect to Eurodollar Loans which have not yet been incurred (including
by way of conversion) shall be deemed rescinded by the Borrower, (y) in
the case of clause (ii) above, the Borrower shall pay to such Bank,
within 10 days of receipt of the notice referred to below, such
additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as the Bank in its sole
discretion shall determine) as shall be required to compensate such
Bank for such increased costs or reductions in amounts received or
receivable hereunder (a written notice as to the additional amounts
owed to such Bank, setting forth the basis for the calculation thereof,
submitted to the Borrower by such Bank shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) and (z) in
the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in
any event, within the time period required by law.
(b) At any time that any Loan is affected by the circumstances
described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of
a Loan affected pursuant to Section 1.10(a)(iii) shall) either (x) if the
affected Loan is then being made pursuant to a Borrowing or a conversion, either
cancel said Borrowing or conversion or, if the notice therefor relates solely to
Eurodollar Loans, convert the Notice of Borrowing or Notice of Conversion
therefor into a Notice of Borrowing or Notice of Conversion, as the case may be,
for Base Rate Loans, in either case by giving the Administrative Agent
telephonic notice (confirmed in writing) thereof on the same date that the
Borrower was notified by the Bank or the Administrative Agent pursuant to
Section 1.10(a)(ii) or (iii) or (y) if the affected Loan is then outstanding,
upon at least three Business Days' written notice to the Administrative Agent,
prepay in full each Borrowing pursuant to which an affected Loan is outstanding
or, if the notice relates solely to Eurodollar Loans, require the affected Bank
to convert such Loan into a Base Rate Loan; provided that, if more than one Bank
is similarly affected at any time, then the Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If any Bank determines at any time that any change in or
effectiveness of any applicable law or governmental rule, regulation, guideline
or order concerning capital adequacy (including without limitation those
announced or published prior to the Third Restatement Effective Date), or any
change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency, will have the effect of increasing
the amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank or reduce the rate of return on such capital
based on the existence of such Bank's Commitment hereunder, its
obligations and commitments in respect of Letters of Credit or its obligations
hereunder, then the Borrower agrees to pay to such Bank, within 10 days of the
receipt of the notice referred to below, such additional amounts as shall be
required to compensate such Bank or such controlling corporation for the
increased cost or reduced rate of return on capital as a result of such increase
of capital or reduction, as the case may be. In determining such additional
amounts, each Bank will act reasonably and in good faith and will use averaging
and attribution methods which are reasonable, provided that such Bank's
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Bank, upon determining that any additional amounts will be payable pursuant
to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall show the basis for calculation of such additional
amounts, although the failure to give any such notice shall not release or
diminish the Borrower's obligations to pay additional amounts pursuant to this
Section 1.10(c) within 10 days of receipt of notice.
1.11 Compensation. The Borrower shall compensate each Bank,
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Bank to fund its Eurodollar Loans) which such Bank may sustain: (i) if for
any reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.10(b)); (ii) if any repayment or conversion of any of its Eurodollar
Loans occurs on a date which is not the last day of an Interest Period with
respect thereto whether or not such prepayment occurs by reason of the exercise
of rights or remedies held by or on behalf of such Bank pursuant to Section 9;
(iii) if any prepayment of any of its Eurodollar Loans is not made on any date
specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Loans when
required by the terms of this Agreement or the Notes of such Bank or (y) any
election made pursuant to Section 1.10(b).
Section 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request (x) any Issuing Bank at
any time and from time to time on or after the Third Restatement Effective Date
and prior to the Maturity Date, to issue, and subject to the terms and
conditions contained herein such Issuing Bank shall issue, for the account of
the Borrower, an irrevocable standby letter of credit denominated in Dollars and
otherwise in such form as has been approved by such Issuing Bank and the
Administrative Agent (each a "Standby Letter of Credit") in support of such
obligations of the Borrower and its Subsidiaries as are acceptable to such
Issuing Bank and the Administrative Agent and (y) any Issuing Bank at any time
and from time to time on or after the Third Restatement Effective Date and prior
to the Maturity Date, to issue, and subject to the terms and conditions
contained herein such Issuing Bank shall issue, for the account of the
Borrower an irrevocable trade letter of credit denominated in Dollars and
otherwise in such form as has been approved by such Issuing Bank and the
Administrative Agent, in support of such obligations of the Borrower and its
Subsidiaries as are acceptable to such Issuing Bank and the Administrative Agent
(each a "Trade Letter of Credit", and, together with each "Standby Letter of
Credit", individually, a "Letter of Credit"; and the "Trade Letters of Credit"
and the "Standby Letters of Credit", collectively, the "Letters of Credit"). It
is hereby acknowledged and agreed that each of the Letters of Credit described
on Schedule 2.01, which were issued by Chase as Issuing Bank under the Prior
Credit Agreement or were previously issued by National Bank of Canada for the
account of the Borrower and remain outstanding on the Third Restatement
Effective Date, shall constitute a "Letter of Credit" for all purposes of this
Agreement.
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed $25,000,000; (ii) no Letter of Credit
shall be issued the Stated Amount of which, when added to (x) all Letter of
Credit Outstandings at such time and (y) the sum of the aggregate principal
amount of all Loans then outstanding, would exceed the Total Commitment; and
(iii) each Letter of Credit shall by its terms terminate not later than one year
after the date of issuance thereof and in any event not later five Business Days
before the Maturity Date.
2.02 Minimum Stated Amount. The Stated Amount of each Letter
of Credit shall not be less than an amount acceptable to the respective Issuing
Bank.
2.03 Letter of Credit Requests. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, it shall give the
respective Issuing Bank (with copies to be sent to the Administrative Agent and
the other Banks) at least two Business Days prior written request therefor. Each
such request shall be executed by the Borrower and shall be in the form of
Exhibit C attached hereto (each a "Letter of Credit Request"). The execution and
delivery of each Letter of Credit Request shall be deemed to be a representation
and warranty by the Borrower that such Letter of Credit may be issued in
accordance with, and will not violate the requirements of, Section 2.01.
(b) Prior to issuing any Letter of Credit, the respective
Issuing Bank shall request confirmation, by telephone or in writing, from the
Administrative Agent, and the Administrative Agent shall provide such
confirmation, that the issuance of such Letter of Credit would not cause the
aggregate outstanding principal amount of the Loans plus the amount of Letter of
Credit Outstandings to exceed the Total Commitment then in effect. Unless the
respective Issuing Bank has received notice from the Administrative Agent or the
Required Banks, which notice has not been rescinded, before it issues any Letter
of Credit that one or more of the conditions specified in Section 5 applicable
to such Credit Event is not then satisfied, or that the issuance of such Letter
of Credit would violate Section 2.01, then such Issuing Bank may issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Issuing Bank's usual and customary practices on the date requested by the
Borrower. Upon its issuance of any Letter of Credit, such Issuing Bank
shall promptly notify the Administrative Agent of such issuance, which notice to
the Administrative Agent shall be accompanied by a copy of the Letter of Credit
actually issued.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Bank of any Letter of Credit (or upon the Third
Restatement Effective Date in the case of Letters of Credit existing on such
date), such Issuing Bank shall be deemed to have sold and transferred to each
Bank other than such Issuing Bank (each such other Bank in such capacity, as
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Bank, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Percentage, in such Letter of Credit of such Issuing Bank,
each substitute letter of credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto. Upon the request of the
Administrative Agent or the Required Banks, such Issuing Bank shall take such
actions in order to transfer such guaranties or security interests, and any
documents and instruments relating thereto, to the Administrative Agent or the
Collateral Agent but any failure to make such transfer shall not restrict or
impair the rights held pursuant to this Agreement by any Bank in such security
interests and guaranties. Upon any change in the Commitments of the Participants
pursuant to Section 12.04, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations pursuant to this Section 2.04 to reflect the
new Percentages of the assigning and assignee Participant.
(b) In determining whether to pay under any Letter of Credit,
the respective Issuing Bank shall not have any obligation relative to the
Participants other than to confirm that any documents required to be delivered
under such Letter of Credit appear to have been delivered and that they appear
to comply on their face with the requirements of such Letter of Credit. In
taking any actions with respect to any security interest or guaranty relating to
any Letter of Credit issued by it, the respective Issuing Bank shall be entitled
to the protections and indemnities afforded the Collateral Agent hereunder and
under the Security Documents, and shall only be obligated to take any actions in
accordance with the obligations of the Collateral Agent, provided that the such
Issuing Bank shall only foreclose on such security interest and enforce such
guaranty if instructed to do so by the Administrative Agent or the Required
Banks. Notwithstanding the proviso contained in the immediately preceding
sentence, nothing in such proviso shall restrict or impair any Issuing Bank's
right to take such actions as such Issuing Bank may reasonably determine to be
required to preserve and protect property subject to any such security interest
and, in the event such Issuing Bank reasonably determines that: (i) property
subject to any such security interest is perishable or threatens to speedily and
materially decline in value and (ii) there then exists an event which, in the
reasonable determination of the Issuing Bank, but for the failure of the
Administrative Agent or the Required Banks to issue such instruction, would
entitle the Issuing Bank to foreclose upon such property, then the Issuing Bank
may foreclose upon such property notwithstanding the failure of the
Administrative Agent or the Required Banks to issue such instruction, provided
that nothing in this sentence shall impose any duty on the Issuing Bank to take
the foregoing actions. Any action taken
or omitted to be taken by such Issuing Bank under or in connection with any
Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for such Issuing Bank any resulting
liability to any Participant.
(c) In the event that any Issuing Bank makes any payment under
any Letter of Credit and the Borrower shall not have reimbursed such amount in
full to such Issuing Bank pursuant to Section 2.05(a), such Issuing Bank shall
promptly notify each Participant of such failure, and each Participant shall
promptly and unconditionally pay to the Administrative Agent for the account of
such Issuing Bank the amount of the Participant's Percentage of such
unreimbursed payment in Dollars and in same day funds. If any Issuing Bank so
notifies, prior to 11:00 A.M. (New York time) on any Business Day, such
Participant required to fund a payment under a Letter of Credit, such
Participant shall make available to the Administrative Agent for the account of
such Issuing Bank the Participant's Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant shall
not have so made its Percentage of the amount of such payment available to such
Issuing Bank, such Participant agrees to pay to the Administrative Agent for the
account of such Issuing Bank, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is paid
to such Issuing Bank at the overnight Federal Funds Rate. The failure of any
Participant to make available to any Issuing Bank its Percentage of any payment
under any Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to such Issuing Bank its Percentage of
any payment under any Letter of Credit on the date required, as specified above,
but no Participant shall be responsible for the failure of any other Participant
to make available to such Issuing Bank such other Participant's Percentage of
any such payment.
(d) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which it has received any payments from any
Participant pursuant to clause (c) above, such Issuing Bank shall pay to the
Administrative Agent for the account of such Participant, in Dollars and in same
day funds, an amount equal to the Participant's Percentage of such payment of a
reimbursement obligation.
(e) Upon the request of any Participant, each respective
Issuing Bank shall furnish to such Participant copies of any Letter of Credit
issued by it and such other documentation as may reasonably be requested by such
Participant.
(f) As between the Borrower and the respective Issuing Bank,
the Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by the respective beneficiaries of such Letters of Credit.
Further, and not in limitation of the foregoing, the respective Issuing Bank
shall not be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of (A) any documents submitted by any party in connection
with the application for and issuance of such Letters of Credit, or (B)
any document submitted by any party in connection with any
drawing under any such Letter of Credit which purports to comply with
the requirements of such Letter of Credit, even if (in the case of (A)
or (B)) such document should in fact prove to be in any and 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) 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 the
transmission or delivery of any messages by mail, cable, telegraph,
telecopier, 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 the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter
of Credit of the proceeds of any drawing of any such Letter of Credit;
and
(viii) any consequences arising from causes beyond the control
of such Issuing Bank, including without limitation any acts of
governments.
(g) the obligations of the Participants to make payments to
any Issuing Bank with respect to Letters of Credit shall be irrevocable and not
subject to any qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or
any Person for whom any such transferee may be acting), the
Administrative Agent, the Documentation Agent, any Issuing Bank, any
Bank, any Participant or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions;
(iii) any draft, 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) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment to the Administrative Agent for the account of such Issuing Bank in
immediately available funds at the Payment Office, for any payment made by such
Issuing Bank under any Letter of Credit (each such amount so paid until
reimbursed, an "Unpaid Drawing") immediately after, and in any event by no later
than 2:00 p.m. (New York time) on the Business Day immediately succeeding the
date of such payment, with interest on the amount so paid by such Issuing Bank,
to the extent not reimbursed prior to 1:00 p.m. (New York time) on the date of
such payment, from and including the date paid to but excluding the date
reimbursement is made as provided above, at a rate per annum which shall be the
Applicable Margin for Base Rate Loans (plus 2% per annum if not reimbursed by
1:00 p.m. on the second Business Day following notice to the Borrower of such
payment) plus the Alternate Base Rate in effect from time to time, such interest
to be payable on demand.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse any Issuing Bank with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower or any other Credit Party may have or have had against the
Administrative Agent, the Documentation Agent, any Issuing Bank, any Participant
or any Bank, including, without limitation, any defense based upon the failure
of any drawing under a Letter of Credit (each a "Drawing") to conform to the
terms of the Letter of Credit or any non-application or misapplication by the
beneficiary of the proceeds of such Drawing; provided, however, that the
Borrower shall not be obligated to reimburse any Issuing Bank for any wrongful
payment made by such Issuing Bank under a Letter of Credit as a result of acts
or omissions constituting willful misconduct or gross negligence on the part of
such Issuing Bank.
2.06 Increased Costs. If at any time the introduction or
effectiveness of or any change in any applicable law, rule or regulation
(including without limitation those announced or published prior to the date of
this Agreement), or in the interpretation or administration thereof by any
governmental authority, central bank or comparable authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank or
any Participant with any request or directive by any such authority (whether or
not having the force of law) shall either (i) impose, modify or make applicable
any reserve, deposit, capital adequacy or similar requirement against letters of
credit issued, or participated in, by any Issuing Bank or any Participant, or
(ii) impose on
any Issuing Bank or any Participant any other conditions affecting this
Agreement or any Letter of Credit; and the result of any of the foregoing is to
increase the cost to the Issuing Bank or the Participant of issuing, maintaining
or participating in any Letter of Credit, or reduce the amount of any sum
received or receivable by any Issuing Bank or Participant hereunder with respect
to Letters of Credit, then, within 10 days of the receipt of the certificate
referred to below (which certificate shall be given by the respective Issuing
Bank or Participant promptly after it determines such increased cost or
reduction is applicable to Letters of Credit or its participation therein) to
the Borrower by the respective Issuing Bank or Participant (a copy of which
certificate shall be sent by such Issuing Bank or Participant to the
Administrative Agent), the Borrower shall pay to such Issuing Bank or
Participant such additional amount or amounts as will compensate such Issuing
Bank or Participant for such increased cost or reduction. A certificate
submitted to the Borrower by such Issuing Bank or Participant (a copy of which
certificate shall be sent by such Issuing Bank or Participant to the
Administrative Agent), setting forth the basis for the calculation of such
additional amount or amounts necessary to compensate such Issuing Bank or
Participant as aforesaid shall be conclusive and binding on the Borrower absent
manifest error.
Section 3. Fees; Commitment; Reductions of Commitments.
3.01 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for distribution to each Bank a commitment commission (the
"Commitment Commission") for the period from the Third Restatement Effective
Date until and including the Maturity Date (or such earlier date upon which the
Total Commitment shall have been terminated), computed at a rate equal to 1/2 of
1% per annum on the daily average Unutilized Commitment of such Bank. Accrued
Commitment Commissions shall be due and payable quarterly in arrears on last
Business Day of each March, June, September and December of each year and on the
Maturity Date (or such earlier date upon which the Total Commitment shall have
been terminated).
(b) The Borrower agrees to pay the Administrative Agent on the
Third Restatement Effective Date for pro rata distribution to the Banks (based
on their respective Percentages) an upfront fee equal to 0.40% of the Total
Commitment.
(c) The Borrower agrees to pay the Administrative Agent for
pro rata distribution to the respective Issuing Bank and the Participants (based
upon their respective Percentages) a fee in respect of each Letter of Credit
(the "Letter of Credit Fee") for the period from and including the date of
issuance of such Letter of Credit to and including the termination date of such
Letter of Credit on the daily average Stated Amount of such Letter of Credit,
computed at the rate per annum equal to the then Applicable Margin for
Eurodollar Loans. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December and on the Maturity Date (or such earlier date upon which the Total
Commitment shall have been terminated).
(d) The Borrower agrees to pay to the Administrative Agent for
the account of the respective Issuing Bank a facing fee in respect of each
Letter of Credit issued by such Issuing Bank (the "Facing Fee") agreed to from
time to time by such Issuing Bank and the Borrower.
(e) The Borrower agrees to pay to the respective Issuing Bank
upon each drawing under a Letter of Credit such amount as shall be agreed by
such Issuing Bank and the Borrower.
(f) The Borrower shall pay to the Administrative Agent, for
its own account, such fees as shall have been agreed upon by such parties.
3.02 Voluntary Reduction of Commitments. At any time upon at
least five Business Days' prior notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each of
the Banks), the Borrower shall have the right, without premium or penalty, to
permanently reduce the Total Commitment in whole or in part, in integral
multiples of $5,000,000, provided that no such reduction shall exceed the amount
equal to the amount of the Total Unutilized Commitment as in effect immediately
before giving effect to such reduction. Any such reduction shall apply
proportionately to reduce the Commitment of each Bank.
3.03 Mandatory Reduction of Commitments. On each date upon
which a mandatory prepayment of Loans would be required to be made pursuant to
Sections 4.02(b), and 4.02(c) if Loans were then outstanding, the Total
Commitment shall be permanently reduced by the amount of such required
prepayment (determined as if Loans were outstanding on the full amount of the
Total Commitment). Each reduction to the Total Commitment pursuant to this
Section 3.03 shall apply proportionately to reduce the Commitment of each Bank.
Section 4. Prepayments; Payments.
4.01 Voluntary Prepayments. The Borrower shall have the right
to prepay the Loans made to it, without premium or penalty, in whole or in part
from time to time on the following terms and conditions: (i) the Borrower shall
give the Administrative Agent prior to 11:00 A.M. (New York time) at its Notice
Office at least three Business Days' prior notice of its intent to prepay the
Loans, which notice shall identify (a) the amount of such prepayment, (b) the
Type of Loans to be prepaid and (c) in the case of Eurodollar Loans, the
specific Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to the respective Banks; (ii) each
partial prepayment of the Loans of the Borrower shall be in an aggregate
principal amount of at least $1,000,000, provided that no partial prepayment of
Eurodollar Loans made pursuant to any Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than
$5,000,000; and (iii) prepayments of Eurodollar Loans may be made pursuant to
this Section 4.01 only on the last day of an Interest Period applicable thereto.
Each prepayment pursuant to this Section 4.01 in respect of any Loans shall be
applied pro rata among all Loans.
4.02 Mandatory Prepayments. (a) If on any date the sum of the
aggregate outstanding principal amount of Loans plus the amount of Letter of
Credit Outstandings exceeds the Total Commitment as then in effect, then there
shall be required to be repaid by the Borrower on such date that principal
amount of Loans as is equal to such excess. If, after giving effect to the
repayment of all outstanding Loans, the Letter of Credit Outstandings exceeds
the Total Commitment then in effect, then there shall be paid to the
Administrative Agent at the Payment Office on such date an amount of cash or
Cash Equivalents equal to the amount by which such sum exceeds the Total
Commitment then in effect, such cash or Cash Equivalents to be held as security
for the obligations of the Borrower hereunder in a manner satisfactory to the
Borrower, the Administrative Agent and the Required Banks.
(b) In addition to any other mandatory repayments pursuant to
this Section 4.02 and subject to Section 4.02(e), the Loans shall be required to
be paid on each date of the receipt by the Borrower or any of its Subsidiaries
of any Net Cash Proceeds from any sale or other disposition of assets by the
Borrower or any of its Subsidiaries (excluding (i) sales of inventory in the
ordinary course of business, (ii) sales of obsolete equipment in the ordinary
course of business the proceeds of which are promptly used to purchase
replacement equipment therefor and (iii) sales the Net Sale Proceeds of which
are less than $500,000) in an amount equal to 100% of the Net Cash Proceeds
therefrom, provided that no amount shall be required to be applied pursuant to
this Section 4.02(b) until such time as the aggregate Net Cash Proceeds which
but for this proviso are required to be so applied and have not been so applied
equals or exceeds $5,000,000.
(c) In addition to any other mandatory repayments pursuant to
this Section 4.02 and subject to Section 4.02(e), the Loans shall be required to
be repaid on each date of, and in an amount equal to the proceeds (net of
underwriting discounts and commissions and other reasonable costs associated
therewith) from, any sale of equity by the Borrower or any of its Subsidiaries,
excluding (i) sales of equity by any Subsidiary to the Borrower or any
wholly-owned Subsidiary of the Borrower, (ii) the issuance of stock of the
Borrower to the ESOP whether in the form of a contribution or purchase, (iii)
the issuance of stock to employees or directors pursuant to employee benefit or
similar plans, (iv) stock issued in payment for the stock of another corporation
then being acquired by the Borrower or a Subsidiary, provided that such
acquisition is permitted by this Agreement and the other Credit Documents, (v)
stock issued by Hoeganaes to Persons (other than the Borrower or a Subsidiary)
which are shareholders of Hoeganaes to the extent such issuance does not
decrease the aggregate proportionate ownership interest of the Borrower and its
Subsidiaries in Hoeganaes, and (vi) stock issued by any Subsidiary at the time
such Subsidiary is created to any Person that is a shareholder of, or any
Affiliate of a shareholder of, Hoeganaes so long as the aggregate proportionate
ownership interest of the Borrower and its Subsidiaries in such Subsidiary is
the same as the aggregate proportionate ownership interest of the Borrower and
its Subsidiaries in Hoeganaes.
(d) With respect to each repayment of Loans pursuant to this
Section 4.02, the Borrower may designate the specific Borrowing or Borrowings
which are to be repaid, provided that:
(i) repayments of Eurodollar Loans made pursuant to this Section 4.02 may only
be made on the last day of an Interest Period applicable thereto unless all
Eurodollar Loans with Interest Periods ending on such date of required
prepayment and all Base Rate Loans have been paid in full; (ii) if any repayment
of Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than $2,000,000 such Borrowing shall immediately be converted into Base Rate
Loans; and (iii) each repayment shall be applied pro rata among all Loans
comprising each Borrowing so prepaid.
(e) Notwithstanding the foregoing, the amounts required to be
applied to the repayment of the Loans under Section 4.02(c) by reason of the
sale of assets of, or equity in, Hoeganaes, shall be limited to the amount which
is otherwise required to be so applied multiplied by a fraction the numerator of
which is the number of shares of Hoeganaes owned by the Borrower and its
Subsidiaries on the date of the required payment and the denominator of which is
the number of shares of Hoeganaes outstanding on the date of the required
payment.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or Banks
entitled thereto not later than 2:00 p.m. (New York time) on the date when due
and shall be made in Dollars in immediately available funds at the Payment
Office of the Administrative Agent. Whenever any payment to be made hereunder or
under any Note shall be contemplated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder, under any Note or under any other Credit Document will be made
without setoff, counterclaim or other defense. All such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein (but excluding, except as
provided below, any tax imposed on or measured by the net income of a Bank
pursuant to the laws of the jurisdiction (or any political subdivision or taxing
authority thereof) in which the principal office or lending office of such Bank
is located) and all interest, penalties or similar liabilities with respect
thereto (collectively, together with any amounts payable pursuant to the next
sentence, "Taxes"). The Borrower shall also reimburse each Bank, upon the
written request of such Bank, for taxes imposed on or measured by the net income
of such Bank pursuant to the laws of the United States of America (or any State
or political subdivision thereof) or the jurisdiction (or any political
subdivision or taxing authority thereof) in which the principal office or
lending office of such Bank is located as such Bank shall determine are payable
by such Bank in respect of Taxes paid to or on behalf of such Bank pursuant to
this or the preceding sentence. If any Taxes are so levied or imposed, the
Borrower agrees to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due hereunder,
under any Note or under any other Credit Document, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. The Borrower will furnish to the
Administrative Agent within 45 days after the date the payment of any Taxes, or
any withholding or deduction on account thereof, is due pursuant to applicable
law certified copies of tax receipts evidencing such payment by the Borrower.
The Borrower will indemnify and hold harmless the Administrative Agent and each
Bank, and reimburse the Administrative Agent or such Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid or withheld
on behalf of such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Administrative Agent, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 12.04 (unless
the respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii)
if the Bank is not a "bank" within the meaning of Section 881 (c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate (any such certificate, a
"Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note; provided, however, that any Bank which has
previously delivered such forms which would otherwise satisfy the requirements
of this sentence shall hereafter be deemed to have complied with the
requirements of this sentence. In addition, each Bank agrees that from time to
time, when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service form 4224 or 1001, or Form W-8 and a
Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of Bank to a
continued exemption form or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver any
such Form or Certificate. Notwithstanding anything to the contrary contained in
Section 4.04(a), (x) the Borrower shall be entitled, to the extent it is
required to do so by law, to deduct or withhold income or similar taxes imposed
by the United States (or any political subdivision or taxing authority thereof
or therein) from interest, fees or other amounts payable hereunder for the
account of any Bank which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Bank has not provided to the Borrower and Administrative Agent
U.S. Internal Revenue Service Forms that establish a complete exemption from
such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States if such Bank has
not provided to the Borrower and the Administrative Agent the Internal
Revenue Services Forms required to be provided to the Borrower and the
Administrative Agent pursuant to this Section 4.04(b) or to the extent that such
Forms do not establish a complete exemption from withholding of such taxes.
Section 5. Conditions Precedent.
5.01 Conditions Precedent to the Third Restatement Effective
Date. The occurrence of the Third Restatement Effective Date is subject to the
satisfaction of the following conditions:
(a) Execution of Agreement; Notes. (i) This Agreement shall
have been executed and delivered as set forth in Section 12.10 and (ii) there
shall have been delivered to the Administrative Agent for the account of the
Banks the appropriate Notes in the amount, maturity and as otherwise provided in
this Agreement;
(b) Officer's Certificate. On the Third Restatement Effective
Date, the Administrative Agent shall have received a certificate dated such date
signed by an appropriate corporate officer of the Borrower stating that to the
best of such officer's knowledge all of the applicable conditions set forth in
Sections 5.01(d), (e), (h) and (i) have been satisfied as of such date;
(c) Opinions of Counsel. The Administrative Agent shall have
received an opinion, addressed to each of the Banks and dated the Third
Restatement Effective Date, from Stephen R. Smith, Vice President and General
Counsel of the Borrower, covering the matters set forth in and substantially in
the form of Exhibit D hereto and such other matters incident to the transactions
contemplated herein as the Administrative Agent may request;
(d) Existing Security Documents. (i) Except to the extent
heretofore released, each of the Subsidiary Guaranties, Security Agreements and
Pledge Agreements executed and delivered pursuant to the Original Credit
Agreement, as amended and restated prior to the Third Restatement Effective Date
or required to be executed and delivered on the Third Restatement Effective Date
by the terms of this Agreement shall be in full force and effect on the Third
Restatement Effective Date, (ii) the security interests and Liens granted to the
Collateral Agent pursuant to such Security Documents shall continue in full
force and effect (except to the extent heretofore released) and shall inure to
the benefit of the Secured Parties, (iii) no filings, recordings, registrations
or other actions shall be necessary or desirable to maintain the perfection and
priority of the security interests granted pursuant thereto in the Collateral
covered thereby and (iv) each of the Credit Parties (other than the Borrower)
shall have executed and delivered a Consent and Reaffirmation in the form of
Exhibit E;
(e) Material Events. On the Third Restatement Effective Date,
no event, action or proceeding shall have occurred or condition shall exist (and
the Banks shall have become aware of no facts or conditions not previously
known) which the Administrative Agent or the Required
Banks shall reasonably determine could have a material adverse effect on (x) the
rights or remedies of the Banks or the Administrative Agent, (y) the ability of
the Borrower or any of its Subsidiaries to perform their respective obligations
under the Credit Documents or (z) the business, property, assets, liabilities,
condition (financial or otherwise), operations, results of operations or
prospects of the Borrower and its Subsidiaries taken as a whole;
(f) Prior Credit Agreement. The Borrower shall have paid to
the Administrative Agent for payment to the Banks under the Prior Credit
Agreement (i) all amounts due and payable under the Prior Credit Agreement, as
amended and restated immediately prior to the Third Restatement Effective Date,
including, but not limited to, all principal, Fees (as defined in the Prior
Credit Agreement, as amended and restated immediately prior to the Third
Restatement Effective Date), interest, and breakage costs and (ii) all other
fees and expenses then due and payable (including, without limitation, legal
fees and expenses) thereunder;
(g) Fees. On the Third Restatement Effective Date, the
Borrower shall have paid to the Administrative Agent and the Banks all Fees (as
defined in this Agreement) and expenses (including, without limitation,
reasonable fees and expenses of counsel) agreed upon by such parties to be paid
on or prior to such date;
(h) Litigation. On the Third Restatement Effective Date, there
shall be no actions, suits or proceedings (including any action, suit or
proceeding for injunctive relief) pending or threatened by any entity (private
or governmental) (i) with respect to this Agreement, the other Credit Documents
or the transactions contemplated thereby, or (ii) which the Administrative Agent
or the Required Banks shall determine is reasonably likely to have a material
adverse effect on the operations, business, property, assets, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole;
(i) Approvals. On the Third Restatement Effective Date, all
necessary governmental (domestic and foreign) and third party approvals in
connection with (i) the consummation of the Loans, (ii) the confirmation,
execution, delivery and performance of any Credit Document which is required to
be confirmed or executed and delivered by the Third Restatement Effective Date,
and to which the Borrower or any of its Subsidiaries is a party or (iii) the
legality, validity, binding effect or enforceability of any such Credit Document
and the transactions contemplated therein or such other transactions otherwise
referred to therein, shall have been obtained and remain in effect; and
(j) Cancellation of Letter of Credit. On the Third Restatement
Effective Date Irrevocable Letter of Credit No. Y275402 dated December 22, 1997
issued by Chase for the account of the Borrower and for the benefit of National
Bank of Canada shall have been surrendered to Chase for cancellation.
5.02 Conditions to All Credit Events. The obligation of each
Bank to make any Loans or to issue or participate in Letters of Credit
(including without limitation the Loans and Letters of Credit described in this
Section 5.02) on and after the Third Restatement Effective Date is subject, at
the time of each such Credit Event, to the satisfaction of Section 1.01(iv) and
the following conditions:
(a) No Default. There shall exist no Default or Event of
Default.
(b) Representations and Warranties. All representations and
warranties herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Credit Event.
(c) Notice of Borrowing; Letter of Credit Requests. In the
case of a Borrowing, the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03. In the case of the issuance
of a Letter of Credit, the Issuing Bank shall have received a Letter of Credit
Request meeting the requirements of Section 2.03, and shall not have received a
notice of the type described in the penultimate sentence of Section 2.03(b),
unless such notice has been rescinded.
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by the Borrower to each of the Banks
that all the applicable conditions specified in this Section 5.02 have been
satisfied or waived as of that time. All of the documents and papers referred to
in this Section 5, unless otherwise specified, shall be delivered to the
Administrative Agent at the Notice Office for the account of each of the Banks
and in sufficient copies or counterparts for each of the Banks and shall be
satisfactory in form and substance to the Administrative Agent.
Section 6. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the Loans and
issue and participate in Letters of Credit, the Borrower makes the following
representations, warranties and agreements as of the Third Restatement Effective
Date, and as of the date of each subsequent Credit Event, which shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans and the issuance of Letters of Credit:
6.01 Organizational Status. Each of the Borrower and its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
power and authority to own its property and assets and to transact the business
in which it is engaged and (iii) is duly qualified as a foreign corporation and
in good standing in each jurisdiction where the ownership, leasing or operation
of property or the conduct of its business requires such qualification except
where the failure to be so qualified would not be reasonably likely to have a
material adverse effect on the business, operations, property, assets, condition
(financial or otherwise), or prospects of the Borrower and its Subsidiaries
taken as a whole.
6.02 Power and Authority. Each of the Credit Parties has the
corporate or other legal power to execute, deliver and perform the terms and
provisions of each of the Credit Documents to which it is a party and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of each of such Credit Documents. Each of the Credit Parties
has duly executed and delivered each of the Credit Documents to which it is
purported to be a party, and each of such Credit Documents constitutes its
legal, valid and binding obligation enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and general equitable principles.
6.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict or be inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the property or
assets of any Credit Party or any of its Subsidiaries pursuant to the terms of
any indenture, mortgage, deed of trust, credit agreement, loan agreement or any
other material agreement, contract or instrument to which such Credit Party or
any of its Subsidiaries is a party or by which it or any of its property or
assets are bound or to which it may be subject, or (iii) will violate any
provision of the Certificate of Incorporation or By-Laws or comparable
organizational documents of the Borrower or any of its Subsidiaries.
6.04 Governmental Approvals. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made), or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution, delivery and
performance of any Credit Document or (ii) the legality, validity, binding
effect or enforceability of any Credit Document.
6.05 Pledge Agreements. The security interests created in
favor of the Collateral Agent under each of the Pledge Agreements will at all
times from and after the execution thereof, and assuming that the Collateral
Agent maintains possession of the respective Pledge Agreement Collateral,
constitute, to the maximum extent permitted under applicable law, first priority
perfected security interests in the Pledge Agreement Collateral thereunder
subject to no Lien of any other Person, except that the shares of stock of
Hoeganaes are subject to the provisions of Sections 6 and 8 of the Hoeganaes
Stockholders Agreement. Except as shall be accomplished prior to the execution
and delivery of a Pledge Agreement, no consents, filings or recordings are
required in order to perfect the security interests purported to be created by
such Pledge Agreement, and no actions or filings are required to maintain and
protect such security interests except which have been effected or obtained
prior to the execution and delivery of the respective Pledge Agreement.
6.06 Other Security Documents. The Security Documents
(excluding the Pledge Agreements) create, or will create when executed and
delivered, as security for the obligations purported to be secured thereby to
the maximum extent permitted under applicable law, a valid, enforceable and
first perfected security interest in and Liens on all of the respective
Collateral in favor of the Collateral Agent for the benefit of the Secured
Parties, superior to and prior to the rights of all third Persons (except that
(x) security interests in the Security Document Collateral (other than the
Mortgaged Properties) may be subject to the security interests evidenced by
Permitted Liens related thereto, (y) security interests in the Mortgaged
Properties may be subject to Permitted Encumbrances existing prior to the filing
of the Mortgage encumbering such Mortgaged Property and (z) Liens created
pursuant to the Additional Security Documents may be subject to Liens approved
by the Administrative Agent at the time of the execution and delivery of such
Additional Security Documents), and no actions or filing are required to
maintain and protect such security interests except as have been effected or
obtained prior to the execution and delivery of the respective Security
Documents. The Collateral, including the Mortgaged Properties, comprises
substantially all of the assets of the Borrower and its Subsidiaries except for
the assets of Hoeganaes and its Subsidiaries. Each Credit Party has good title
to all Security Document Collateral free and clear of all Liens other than the
exceptions described in the first sentence of this Section 6.06.
6.07 Financial Statements; Financial Condition; Undisclosed
Liabilities, etc. (a) The consolidated statements of financial condition of the
Borrower and its Subsidiaries at December 28, 1997 and March 29, 1998, and the
related consolidated statements of income and retained earnings and cash flows
of the Borrower and its Subsidiaries for the fiscal year or three-month period,
as the case may be, ended on such dates and heretofore furnished to the Banks
present fairly the consolidated financial condition of the Borrower and its
Subsidiaries at the dates of such statements of financial condition and the
consolidated results of the operations of the Borrower and its Subsidiaries at
the date of such statements of financial condition and the consolidated results
of the operations of the Borrower and its Subsidiaries for such fiscal year or
three-month period, as the case may be. All such financial statements have been
prepared in accordance with generally accepted accounting principles and
practices consistently applied. Since March 29, 1998, there has been no material
adverse change in the business, operations, property, assets, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole.
(b) Except as fully reflected in the financial statements
delivered pursuant to Section 6.07(a) or in Schedule 6.07 hereto, there were as
of the Third Restatement Effective Date no liabilities or obligations (excluding
current obligations incurred in the ordinary course of business) with respect to
the Borrower or any of its Subsidiaries of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether or not due), and the
Borrower does not know of any basis for the assertion against the Borrower or
any of its Subsidiaries of any such liability or obligation which, either
individually or in aggregate, are or would be reasonably likely to be material
to the Borrower and its Subsidiaries taken as a whole.
(c) The pro forma projected consolidated balance sheet for the
Borrower and its Subsidiaries and the pro forma consolidated income statement
for the Borrower and its Subsidiaries delivered to the Banks on June 14, 1998
(the "Projections") are based on good faith estimates and assumptions made by
the management of the Borrower and its Subsidiaries and, on the Third
Restatement Effective Date, the management believed that the Projections were
reasonable and attainable.
(d) On and as of the Third Restatement Effective Date, after
giving effect to all Indebtedness incurred, and to be incurred, and Liens
created, and to be created, by each Credit Party in connection therewith, (i)
the sum of the assets, at a fair valuation, of the Borrower and its Subsidiaries
taken as a whole will exceed their debts; (ii) the Borrower and its Subsidiaries
taken as a whole have not incurred and do not intend to, or believe that they
will, incur debts beyond their ability to pay such debts as such debts mature;
and (iii) the Borrower and its Subsidiaries taken as a whole will have
sufficient capital and assets with which to conduct their businesses. For
purposes of this Section 6.07(d) "debt" means any liability on a claim, and
"claim" means (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured; or (y) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
6.08 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of the Borrower, threatened (i) with respect
to any Credit Document or (ii) that are reasonably likely to materially and
adversely affect the business, operations, property, assets, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole.
6.09 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of the Borrower or any of its
Subsidiaries in writing to any Bank in connection with this Agreement and the
other Credit Documents executed in connection herewith (including without
limitation all information contained in the Credit Documents for purposes of or
in connection with this Agreement) is true and accurate in all material respects
on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading at such time in light of the circumstances
under which such information was provided.
6.10. Use of Proceeds; Margin Regulations. (a) All proceeds of
the Loans shall be used by the Borrower for the Borrower's and its Subsidiaries'
working capital requirements and general corporate purposes, including Permitted
Acquisitions.
(b) No part of the proceeds of any Loan will be used by the
Borrower or any Subsidiary thereof to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock. Neither the making of any Loan nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System.
6.11 Tax Returns and Payments. The Borrower and each of its
Subsidiaries filed all federal tax returns and all other material tax returns,
domestic or foreign, required to be filed by it and has paid all income taxes
payable by it which have become due pursuant to such tax returns and all other
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith and for
which adequate reserves have been established. The Borrower and each of its
Subsidiaries paid, or provided adequate reserves (in the good faith judgment of
the management of the Borrower or such Subsidiary) for the payment of, all
federal, state and local (including foreign) income taxes applicable for all
prior fiscal years and for the current fiscal year to the date hereof.
6.12 Compliance with ERISA. Each Plan is in substantial
compliance with ERISA; no Plan which is a multiemployer plan (as defined in
Section 4001(a)(3) of ERISA) is insolvent or in reorganization within the
meaning of Sections 418E and 418 of the Code, respectively; excluding Plans
which are multiemployer plans (as defined in Section 4001(a)(3) of ERISA), the
aggregate Unfunded Current Liability for all Plans does not exceed $5 million
and no Plan has an accumulated or waived funding deficiency within the meaning
of Section 412 of the Code; neither the Borrower nor any of its Subsidiaries nor
any ERISA Affiliate has incurred any material liability to or on account of a
Plan pursuant to Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA which has
not been satisfied or reasonably expects to incur any liability under any of the
foregoing Sections on account of the termination of participation in or
contributions to any such Plan; no proceedings have been instituted to terminate
any Plan other than pursuant to Section 4041(b) of ERISA; no condition exists
which presents a material risk to the Borrower or any of its Subsidiaries or any
ERISA Affiliate of incurring a material liability to or on account of a Plan
pursuant to any of the Sections of ERISA and the Code specifically referred to
in this Section 6.12; no lien imposed under the Code or ERISA on the assets of
the Borrower or any of its Subsidiaries or any ERISA Affiliate exists or is
reasonably likely to arise on account of any Plan; and each of the Borrower and
its Subsidiaries may terminate contributions to any other employee benefit plans
maintained by them without incurring any liability to any person interested
therein material to the Borrower and its Subsidiaries taken as a whole. All
representations made in this Section 6.12 with respect to Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) shall be to the
best knowledge of the Borrower.
6.13 Capitalization. On the Third Restatement Effective Date
the authorized capital stock of the Borrower consists of (i) 100,000,000 shares
of common stock, $1.00 par value per share (the "Common Stock"), (ii) 15,000,000
shares of Non-Voting Common Stock, $1.00 par value per share (the "Non-Voting
Common Stock"), and (iii) 2,000,000 shares of Serial Preferred Stock, $1.00 par
value per share. Of the authorized shares of Serial Preferred Stock, 35,000 are
designated Series A1 Convertible Exchangeable Preferred Stock, par value $1.00
per share (the "Series A1 Preferred"), 35,000 are designated Series A2
Convertible Exchangeable Preferred Stock,
par value $1.00 per share (the "Series A2 Preferred"), 5,000 are designated
Series A3 Convertible Preferred Stock, $1.00 par value per share (the "Series A3
Preferred"), 35,000 are designated Series B1 Convertible Preferred Stock, par
value $1.00 per share (the "Series B1 Preferred"), 35,000 are designated Series
B2 Convertible Preferred Stock, par value $1.00 per share (the "Series B2
Preferred") and 5,000 are designated Series B3 Convertible Preferred Stock,
$1.00 par value per share (the "Series B3 Preferred"). Immediately prior to the
Third Restatement Effective Date, the number of issued shares of Common Stock
was 23,175,142. On the Third Restatement Effective Date, the number of issued
shares of Series A2 Preferred is 35,000, the number of issued shares of Series
A3 Preferred is 5,000, and no shares of Non-Voting Common Stock, Series A1
Preferred, Series B1 Preferred, Series B2 Preferred or Series B3 Preferred are
issued. On the Third Restatement Effective Date, all of the issued shares of
capital stock of the Borrower will have been duly and validly issued and will be
fully paid and non-assessable. The Borrower has no outstanding securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock,
except (i) shares of capital stock (and the Exchange Debentures if issued)
issuable upon the conversion or exchange of one or more of the Series A1, A2,
A3, B1, B2 or B3 Preferred and Non-Voting Common Stock or upon conversion of the
Exchange Debentures, (ii) shares of Common Stock issuable upon the exercise of
outstanding stock options and stock appreciation rights granted pursuant to any
stock incentive program of the Borrower, (iii) shares of Common Stock issuable
upon the exercise of rights heretofore granted, pursuant to the Rights Agreement
between the Borrower and First National dated as of January 26, 1989, as
heretofore amended, with respect to shares of Common Stock now or hereafter
issued and (iv) shares of Common Stock which may be purchased by the ESOP to the
extent permitted under Section 8.06(x). The Borrower is not subject to any
obligations (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of its capital stock or make any payments in connection with
stock appreciation rights except (i) cash payments made in settlement of
outstanding stock appreciation rights granted pursuant to any stock incentive
program of the Borrower, (ii) shares delivered in payment of the option price of
outstanding stock options granted pursuant to any stock incentive program of the
Borrower, (iii) shares of Common Stock received in lieu of cash as reimbursement
for withholding taxes payable with respect to stock awards, (iv) the obligations
of the Borrower under the Preferred Stock Purchase Agreement, and the Series A3
Purchase Agreement, the Certificates of Designation relating to the Series A1,
A2 and A3 Preferred and Series B1, B2 and B3 Preferred, the Exchange Debentures
and, with respect to the Non-Voting Common Stock, the Borrower's Restated
Certificate of Incorporation, (v) the obligations of the Borrower pursuant to
the ESOP and (vi) the obligations of Chem-tronics, Inc. pursuant to The
Chem-tronics Employee Stock Ownership Plan effective as of October 1, 1980.
6.14 Subsidiaries. The Persons listed on Schedule 6.14 are the
only direct and indirect Subsidiaries and Inactive Subsidiaries of the Borrower.
Schedule 6.14 correctly sets forth the percentage ownership (direct and
indirect) of the Borrower in each class of capital stock of each of its
Subsidiaries and Inactive Subsidiaries and also identifies the direct owner
thereof.
6.15 Compliance with Statutes, etc. (a) Except as set forth on
Schedule 6.15, the Borrower and each of its Subsidiaries are in compliance with
all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of their businesses and the ownership of their property,
except such noncompliances as are not likely to, in the aggregate, have a
material adverse effect on the business, operations, property, assets, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole.
(b) Except as reflected in the financial statements delivered
pursuant to Section 6.07(a) or as set forth on Schedule 6.15, each of the
Borrower and its Subsidiaries has complied with all applicable foreign, federal,
state and local environmental laws (including, without limitation, RCRA and
CERCLA), regulations and ordinances governing its business, products, properties
or assets with respect to all discharges into the ground and surface water,
emissions into the ambient air and generation, accumulation, storage, treatment,
transportation, labeling or disposal of waste materials or process by-products
for which failure to comply is likely to have a material adverse effect on the
property, assets, business, operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, and, except as
set forth on Schedule 6.15 hereto, neither of the Borrower nor its Subsidiaries
is liable for any material (to the Borrower and its Subsidiaries taken as a
whole) penalties, fines or forfeitures for failure to comply with any of the
foregoing in the manner set forth above. Except as set forth in Schedule 6.15
hereto, all licenses, permits or registrations required for the business of the
Borrower and its Subsidiaries, as conducted as of the Third Restatement
Effective Date, under any foreign, federal, state or local environmental laws,
regulations or ordinances have been obtained, or have been applied for and are
pending as set forth on Schedule 6.15 hereto, and each of the Borrower and its
Subsidiaries is in substantial compliance therewith, except such licenses,
permits or registrations the failure to secure or to comply therewith is not
likely to have a material adverse effect on the property, assets, business,
operations, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole. Neither the Borrower nor any of its
Subsidiaries is in any material respect in noncompliance with, breach of or
default under any applicable writ, order, judgment, injunction, or decree to
which any such Person is a party or which would materially and adversely affect
the ability of such Person to operate any manufacturing plant or other real
property and, to the best of the Borrower's knowledge, no event has occurred and
is continuing which would constitute noncompliance, breach of or default
thereunder. Except as reflected in the financial statements delivered pursuant
to Section 6.07(a) or as set forth on Schedule 6.15 hereto, there are no legal
or governmental proceedings pending or, to the best of the Borrower's knowledge
threatened, which (a) question the validity, term or entitlement of the Borrower
or any of its Subsidiaries for any permit, license, order or registration
required for the operation of any facility which the Borrower or any of its
Subsidiaries currently operates in the United States, which individually or in
the aggregate, are material to the Borrower and its Subsidiaries taken as a
whole and (b) wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the financial viability of any facility thereof,
which individually or in the aggregate, are material to the Borrower and its
Subsidiaries taken as a whole.
(c) There are no facts, circumstances, conditions or
occurrences on any Mortgaged Property or, to the Borrower's knowledge, any
property adjoining or in the vicinity of any Mortgaged Property, (i) which would
form the basis of any environmental claim against the Borrower or any of its
Subsidiaries or any Mortgaged Property or assets located thereon, or (ii) which
would cause such Mortgaged Property or such assets to be subject to any
restrictions on the ownership, occupancy, use or transferability thereof under
any environmental law, and in each case, would be reasonably likely to result in
a material adverse effect on the business, operations, property, assets,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole.
6.16 Investment Company Act. Neither the Borrower nor any
of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
6.17 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.18 Patents, Licenses, Franchises and Formulas. Except as set
forth in Schedule 6.18, each of the Borrower and its Subsidiaries owns all the
patents, trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, or each has
obtained assignments of all licenses and other rights of whatever nature
necessary for the present conduct of its businesses, without any known conflict
with the rights of others which, or the failure to obtain which, as the case may
be, is likely to result in a material adverse effect on the business,
operations, property, assets, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries taken as a whole.
6.19 Restrictions on Subsidiaries. There are no restrictions
on the Borrower or any of its Subsidiaries which prohibit or otherwise restrict
(i) the transfer of cash or other assets (x) between the Borrower and any of its
Subsidiaries or (y) between any Subsidiaries of the Borrower or (ii) the
Borrower or any of its Subsidiaries from granting Liens or security interests in
their respective assets to the Collateral Agent, other than (x) applicable
restrictions of law imposed on Subsidiaries by the jurisdictions in which such
Subsidiaries are incorporated or do business and (y) those restrictions imposed
by the Hoeganaes Stockholders Agreement.
6.20 Properties. The Borrower and each of its Subsidiaries
have good title to all properties owned by them, including all property
reflected in the consolidated balance sheet of the Borrower and its Subsidiaries
as referred to in Section 6.07(a) (except as sold or otherwise disposed of since
the date of such balance sheet in the ordinary course of business), free and
clear of all Liens, other than as otherwise permitted by Section 8.01.
6.21 Existing and Continued Security Interests. The
Borrower on behalf of itself and on behalf of its Subsidiaries represents and
warrants that:
(i) Except as set forth herein, the execution, delivery and
performance of this Agreement shall not in any way affect the
respective obligations of the Borrower and its Subsidiaries under any
Credit Document or any other document executed in connection therewith,
other than the Prior Credit Agreement, to which either the Borrower or
any of its Subsidiaries is a party, including without limitation, the
respective obligations of the Borrower and its Subsidiaries (if any)
under (x) the Company Security Agreement, (y) the Subsidiary Security
Agreement, and (z) any and all documents executed therewith;
(ii) Each Credit Document and each other document executed in
connection therewith, except as heretofore released and other than the
Prior Credit Agreement, are hereby assumed under and made a part of
this Agreement; and
(iii) On the date hereof, the obligations of the Borrower and
each of its Subsidiaries under the Credit Documents and the documents
executed in connection therewith, except as heretofore released and
other than the Prior Credit Agreement, remain absolute and
unconditional and are not subject to any defense, set-off or
counterclaim; provided that, in the case of each of the Credit
Documents, the Borrower hereby acknowledges and agrees that the
"Obligations" (as defined therein) include all of the Obligations under
and as defined in this Agreement, after giving effect to the Third
Restatement Effective Date and any increase in the amounts owing to the
Banks or the agents.
Section 7. Affirmative Covenants. The Borrower covenants and
agrees that on and after the Third Restatement Effective Date and until the
Total Commitment has terminated, all Letters of Credit are terminated and the
Loans, any Unpaid Drawings and the Notes, together with interest, Fees and all
other obligations incurred hereunder and thereunder, are paid in full:
7.01 Information Covenants. The Borrower will furnish to each
Bank:
(a) Monthly Reports. Within 20 Business Days after the end of
each fiscal month other than the last such month of any fiscal quarter of the
Borrower, the consolidated balance sheet of the Borrower as at the end of such
month and the related consolidated statements of income and sources and uses of
cash for such month and for the elapsed portion of the fiscal year ended with
the last day of such month, in each case setting forth comparative figures for
the corresponding month in the prior fiscal year, together with a discussion of
the results thereof, and a schedule of all intercompany Indebtedness
specifically setting forth the details of the obligor, the payee, and other
relevant terms of repayment and whether such Indebtedness is evidenced by a
promissory note or an instrument.
(b) Quarterly Financial Statements. Within 45 days after the
close of each quarterly accounting period in each fiscal year of the Borrower
other than the last such quarter of any fiscal year, the consolidated and
consolidating balance sheet of the Borrower in the general form as last
delivered prior to the Third Restatement Effective Date as at the end of such
quarterly period and the related consolidated and consolidating statements of
income and sources and uses of cash for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, in each case setting forth comparative figures for the related periods
in the prior fiscal year, all of which shall be certified by the Vice
President-Finance or Treasurer of the Borrower subject to normal year-end audit
adjustments.
(c) Annual Financial Statements. Within 75 days after the
close of each fiscal year of the Borrower, the consolidated and consolidating
balance sheets of the Borrower in the general form as last delivered prior to
the Third Restatement Effective Date as at the end of such fiscal year and the
related consolidated and consolidating statements of income and retained
earnings and sources and uses of cash for such fiscal year, in each case setting
forth comparative figures for the preceding fiscal year and, in the case of said
consolidated financial statements, certified by Price Waterhouse Coopers or
independent certified public accountants of recognized national standing
acceptable to the Administrative Agent or the Required Banks and in the case of
such consolidating financial statements, certified by the Vice President-Finance
or Treasurer of the Borrower, in each case together with a report of such
accounting firm stating that in the course of its regular audit of the financial
statements of the Borrower, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm obtained no
knowledge of any Default or Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or Event
of Default has occurred and is continuing, a statement as to the nature thereof.
(d) Budgets. Within 30 days after the first day of each fiscal
year of the Borrower, a budget in form satisfactory to the Administrative Agent
prepared by the Borrower for the twelve months beginning on the first day of
such fiscal year accompanied by the statement of the Vice President-Finance or
Treasurer of the Borrower to the effect that, to the best of his knowledge, such
budget is a reasonable estimate for the period covered thereby. Within 30 days
after the first day of the third fiscal quarter of the Borrower, the Vice
President-Finance or Treasurer of the Borrower shall deliver either (i) a
certificate to the effect that, to the best of his knowledge, the budget
previously delivered remains a reasonable estimate for the remainder of the
period covered thereby or (ii) a budget summary for such remaining period
covering any significant changes to the budget previously delivered.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 7.01(b) and (c), a certificate of
the Vice President-Finance or Treasurer of the Borrower to the effect that to
the best of his knowledge, no Default or Event of Default has occurred and is
continuing, or if the Vice President-Finance or Treasurer is unable to make the
certifications required herein, such officer shall supply a statement setting
forth the reasons for such inability, specifying the nature and extent of such
reasons. Such certificate shall also set forth the
calculations required to establish whether the Borrower was in compliance with
the provisions of Sections 8.08 through 8.10, inclusive, at the end of such
fiscal quarter or year, as the case may be.
(f) Notice of Default or Litigation. Promptly, and in any
event within three Business Days after any of the Chairman, President, Vice
President-Finance, Treasurer or chief legal officer of the Borrower obtains
actual knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or Event of Default or (ii) any litigation or governmental
proceeding pending (x) against the Borrower or any of its Subsidiaries which
could materially and adversely affect the business, operations, property,
assets, condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole or (y) with respect to any Credit Document.
(g) Management Letters. Promptly after the Borrower's receipt
thereof, a copy of any "management letter" received from its certified public
accountants.
(h) Other Reports and Filings. Promptly, copies of all
financial information, proxy materials and other information and reports, if
any, which the Borrower (x) has filed with the Securities and Exchange
Commission or any governmental agencies substituted therefor (the "SEC") or any
comparable agency outside of the United States or (y) has delivered to holders
of, or to any agent or trustee with respect to, Indebtedness of the Borrower in
their capacity as such a holder, agent or trustee.
(i) Other Information. From time to time, such other
information or documents (financial or otherwise) as the Administrative Agent,
acting in its own capacity or at the request of any Bank, may reasonably
request.
7.02 Books, Records and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of applicable law shall be made of
all dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, permit officers and
designated representatives of the Administrative Agent or the Required Banks,
upon two Business Days' notice, to visit and inspect any of the properties of
the Borrower or such Subsidiary, and to examine the books of account of the
Borrower or such Subsidiary and discuss the affairs, finances and accounts of
the Borrower or such Subsidiary with, and be advised as to the same by, its and
their officers, and to conduct audits of the Borrower's books and records and
each of its Subsidiaries' books and records, all at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or the
Required Banks may request.
7.03 Maintenance of Property, Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (i) keep all property useful and
necessary in its business in good working order and condition, (ii) maintain
with financially sound and reputable insurance companies insurance which
provides substantially the same (or greater) coverage and against at least such
risks as are
maintained by other corporations similarly situated with like property, provided
that in no event will any deductible or self-insurance retention per occurrence
(i) in respect of liability claims, exceed $2.5 million or (ii) in respect of
casualty damage, exceed $2.5 million, and (iii) furnish to each Bank, upon
written request by the Administrative Agent, full information as to the
insurance carried. The provisions of this Section 7.03 shall be deemed to be
supplemental to, but not duplicative of, the provisions of any of the Security
Documents that require the maintenance of insurance.
7.04 Corporate Franchises. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 7.04 shall prevent (x) the withdrawal by the Borrower or any of its
Subsidiaries of its qualification to do business as a foreign corporation in any
jurisdiction, or the failure to preserve franchises, patents and licenses, in
any such case where such withdrawal or failure could not reasonably be expected
to have a material adverse effect on the business, operations, property, assets,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole or (y) any action expressly permitted by Section
8.02.
7.05 Compliance with Statutes, etc. The Borrower will, and
will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not reasonably be expected to, in
the aggregate, have a material adverse effect on the business, operations,
property, assets, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole.
7.06 ERISA. As soon as possible and in any event within 10
days after the Borrower or any of its Subsidiaries or any ERISA Affiliate knows
or has reason to know any of the following, the Borrower will deliver to each of
the Banks a certificate of the Vice President - Finance or Treasurer of the
Borrower setting forth details as to such occurrence and such action, if any,
which the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices given to or filed with or by the
Borrower, its Subsidiaries, ERISA Affiliates, the PBGC, a Plan participant or
the Plan administrator with respect thereto: that a Reportable Event has
occurred, that an accumulated funding deficiency (as defined in Section 412 of
the Code) has been incurred or an application has been made or is reasonably
likely to be made to the Secretary of the Treasury for a waiver of the minimum
funding standard or an extension of any amortization period under Section 412 of
the Code with respect to a Plan, that a Plan has been or is reasonably likely to
be terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA, that a Plan has an Unfunded Current Liability giving rise to a lien under
ERISA or the Code, that proceedings have been instituted by the PBGC or are
reasonably likely to be instituted by the PBGC to terminate a Plan, that a
proceeding has been instituted to collect from the Borrower or a Subsidiary a
delinquent contribution to a Plan pursuant to Section 515 of ERISA, or that the
Borrower, any
Subsidiary or an ERISA Affiliate will or is reasonably likely to incur any
liability (including any contingent or secondary liability) to or on account of
the termination of or withdrawal by the Borrower, a Subsidiary or an ERISA
Affiliate from a Plan under Sections 4062, 4063, 4064, 4201 or 4204 of ERISA.
With respect to each Plan which is a single-employer plan (as defined in Section
4001(a)(15) of ERISA) the Borrower will deliver to the Administrative Agent a
complete copy of the annual report (Form 5500 series) therefor required to be
filed with the Internal Revenue Service and with respect to each Plan which is a
multiemployer plan (as defined in Section 4001(a)(3) of ERISA) the Borrower will
deliver to the Administrative Agent a complete copy of each annual report (Form
5500 series) therefor provided after the date of this Agreement to the Borrower
or its respective Subsidiaries or ERISA Affiliates by the administrator of said
Plan. Copies of annual reports required to be delivered to the Banks hereunder
shall be delivered no later than 10 days after the date such report has been
filed with the Internal Revenue Service by the Borrower or any of its
Subsidiaries or any ERISA Affiliate.
7.07 End of Fiscal Years; Fiscal Quarters. Without the prior
written consent of the Required Banks, the Borrower shall not, and shall not
permit any of its Subsidiaries to, change the manner of determining the date on
which any of their fiscal quarters or fiscal years shall end.
7.08 Performance of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, indenture, security agreement and other agreement by
which it is bound, except such non-performances as could not reasonably be
expected to, in the aggregate, have a material adverse effect on the business,
operations, property, assets, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries taken as a whole.
7.09 Inactive Subsidiaries. If at any time after the Third
Restatement Effective Date, any Inactive Subsidiary of the Borrower ceases to be
an Inactive Subsidiary other than by virtue of ceasing to exist, it shall be
deemed a Subsidiary of the Borrower under this Agreement, and the Borrower shall
cause such Subsidiary to take all such action as is necessary to execute and
deliver Guaranties and Security Documents (or counterparts thereof) as if such
Inactive Subsidiary were first acquired or created as a Subsidiary at such time.
Section 8. Negative Covenants. The Borrower agrees that on and
after the Third Restatement Effective Date and until the Total Commitment has
terminated, all Letters of Credit have terminated and the Loans, any Unpaid
Drawings and the Notes, together with interest, Fees and all other obligations
incurred hereunder and thereunder, are paid in full:
8.01 Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse to the Borrower or any of its
Subsidiaries), or assign any right to receive income or permit the filing of any
financing statement under the UCC or any other similar notice of Lien under any
similar recording or notice statute; provided that the provisions of this
Section 8.01 shall not prevent the creation, incurrence, assumption or existence
of the following:
(i) Liens securing judgments which have been bonded or stayed
within 45 days after arising in the ordinary course of business, to the
extent such judgment does not constitute an Event of Default, provided
the Liens are being contested in good faith and by appropriate
procedures, and Liens for taxes, governmental assessments or charges in
the nature of taxes not yet due, or Liens for taxes, governmental
assessments or charges in the nature of taxes which have been bonded or
stayed within 45 days after arising and being contested in good faith
and by appropriate procedures for which adequate reserves have been
established;
(ii) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business, such as carriers', warehousemen's,
materialmen's, repairmen's and mechanics' liens and other similar Liens
arising in the ordinary course of business, and (x) which do not in the
aggregate materially detract from the value of such property or assets
or materially impair the use thereof in the operation of the business
of the Borrower and its Subsidiaries or (y) which are being contested
in good faith by appropriate procedures, which procedures have the
effect of preventing or staying while pending the forfeiture or sale of
the property or assets subject to any such Lien;
(iii) Liens in existence on the Third Restatement Effective
Date and which are listed, and the property subject thereto described,
in Schedule 8.01 hereto (the "Permitted Liens");
(iv) Liens created pursuant to the Security Documents;
(v) Utility deposits and pledges or deposits in connection
with worker's compensation, unemployment insurance and other social
security legislation;
(vi) Liens securing Indebtedness in the amount permitted by
Section 8.05(d) upon (i) any property or assets acquired (whether by
purchase, merger or otherwise) after the date hereof (and not
theretofore owned by the Borrower or any of its Subsidiaries), or (ii)
improvements made on any property or assets now owned or hereafter
acquired, securing the purchase price thereof or created or incurred
simultaneously with, or within 180 days after, such acquisition or the
making of such improvements or existing at the time of such acquisition
(whether or not assumed) or the making of such improvements, if (x)
such Lien shall be limited to the property or assets so acquired or the
improvements so made, (y) the
amount of the obligations or indebtedness secured by such Liens shall
not be increased after the date of the acquisition of such property or
assets or the making of such improvements, except to the extent
improvements are made to such property or assets after the date of the
acquisition or the making of the initial improvements, and (z) the
principal amount of the obligation or Indebtedness secured by such Lien
shall not exceed 100% of the cost or fair value (which may be
determined in good faith by the Board of Directors of the Borrower),
whichever is lower, of the property or assets or improvements at the
time of the acquisition or making thereof;
(vii) Liens arising under Capital Leases to the extent
permitted by Section 8.05(d);
(viii) Liens on assets of the ESOP and the ESOP Trust in favor
of participants and beneficiaries of the ESOP;
(ix) Liens in the form of cash collateral securing the
obligations of the Borrower and its Subsidiaries permitted by Section
8.05(g); and
(x) Liens in the form of cash collateral securing the
obligations of the Borrower under the Total Return Swap.
8.02 Consolidation, Merger, Sale of Assets, etc. The Borrower
will not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or any part of its property or assets, except
that:
(i) the Borrower and its Subsidiaries may in the ordinary
course of business sell and lease inventory;
(ii) Capital Expenditures shall be permitted to the extent not
in violation of Section 8.08;
(iii) the Borrower and its Subsidiaries may sell or otherwise
dispose of any assets which, in the reasonable judgment of such Person,
have become uneconomic, obsolete or worn out;
(iv) the Borrower and its Subsidiaries may sell assets the
book value of which in any one case does not exceed $5,000,000,
provided that (x) the aggregate book value of assets sold or otherwise
disposed of pursuant to this clause (iv) in any one fiscal year does
not exceed $10,000,000 and (y) the proceeds of each such sale or
disposition are applied to repay the Loans to the extent required by
Section 4.02;
(v) the Borrower may merge with one or more wholly-owned
Subsidiaries provided the Borrower is the surviving entity; the
Borrower or a Subsidiary may transfer assets in the ordinary course of
business to the Borrower or a Subsidiary which is a Subsidiary
Guarantor or a Subsidiary Pledgor; a Subsidiary which is not a
Subsidiary Guarantor or Subsidiary Pledgor may transfer assets in the
ordinary course of business to the Borrower or a Subsidiary; a
Subsidiary other than a Subsidiary Guarantor or Subsidiary Pledgor may
transfer assets to one or more other Subsidiaries of the Borrower
provided that the Borrower's ultimate equity ownership interest
(expressed as a percentage) in the transferee Subsidiary or
Subsidiaries is greater than or equal to the Borrower's ultimate equity
ownership interest (expressed as a percentage) in the transferor
Subsidiary; a Subsidiary Guarantor may transfer assets to one or more
other Subsidiary Guarantors; and a Subsidiary Pledgor may transfer
assets to one or more other Subsidiary Pledgors;
(vi) any Subsidiary other than a Subsidiary Guarantor or
Subsidiary Pledgor may merge or consolidate with one or more such other
Subsidiaries of the Borrower, provided that (x) the Borrower's ultimate
equity ownership interest (expressed as a percentage) in the surviving
Subsidiary or Subsidiaries is greater than or equal to the Borrower's
ultimate equity ownership interest (expressed as a percentage) in the
merging or consolidating Subsidiary, and (y) no Default or Event of
Default exists or would result therefrom;
(vii) any Subsidiary Guarantor may merge or consolidate with
one or more other Subsidiary Guarantors, and any Subsidiary Pledgor may
merge or consolidate with one or more other Subsidiary Pledgors,
provided that (x) the Borrower's ultimate equity ownership interest
(expressed as a percentage) in the surviving Subsidiary or Subsidiaries
is greater than or equal to the Borrower's ultimate equity ownership
interest (expressed as a percentage) in the merging or consolidating
Subsidiary, and (y) no Default or Event of Default exists or would
result therefrom; and
(viii) any Subsidiary which has made a Distribution permitted
under Section 8.03 may be wound up, liquidated and/or dissolved so long
as, immediately following such Distribution, the assets of such
Subsidiary are less than $25,000.
To the extent the Required Banks waive any provision of this
Section 8.02 with respect to the sale of any Collateral, or any Collateral is
sold as permitted by this Section 8.02, such Collateral shall be sold free and
clear of the Liens created by the Security Documents, and the Collateral Agent
shall be authorized to take such actions as it deems appropriate in connection
therewith.
8.03 Distributions. The Borrower shall not authorize, declare
or pay, or permit any of its Subsidiaries to authorize, declare or pay, any
Distributions, except that:
(i) any Subsidiary of the Borrower may make Distributions to
the holders of the equity in such Subsidiary, ratably in accordance
with the percentage ownership of such holders;
(ii) payments required to be made in respect of stock
appreciation rights outstanding on the Third Restatement Effective Date
shall be permitted;
(iii) the settlement of stock options outstanding on the Third
Restatement Effective Date shall be permitted, provided that the
aggregate amount paid in respect of such settlements shall not exceed
$1.5 million, and the issuance of stock options to employees in
cancellation of or consideration of the surrender and cancellation of
outstanding options, to the extent such issuance, surrender or
cancellation may be deemed a Distribution, shall be permitted;
(iv) Hoeganaes shall be permitted to make Distributions in
respect of its capital stock on a pro rata basis to its shareholders,
and any Subsidiary of Hoeganaes shall be permitted to make
Distributions to Hoeganaes or any Subsidiary of Hoeganaes;
(v) the redemption of outstanding shareholder rights shall be
permitted, provided that the aggregate amount paid in respect of such
redemption shall not exceed $400,000;
(vi) the retirement or acquisition by way of transfer from any
Person to the Borrower of capital stock of the Borrower in payment of
all or any portion of the exercise price of any warrants, options or
rights to acquire capital stock of the Borrower shall be permitted;
(vii) the retirement or acquisition by way of transfer from
any Person to the Borrower of capital stock of the Borrower acquired by
such Person from the Borrower pursuant to a grant or award of such
capital stock of the Borrower made by the Borrower shall be permitted,
provided that such retirement or acquisition is in satisfaction of all
or any portion of income and/or employment taxes to be withheld by the
Borrower with respect to such Person and; provided further, that the
aggregate amount paid in respect of such retirements and acquisitions
shall not exceed $2,000,000; and
(viii) the retirement or acquisition of shares of Series A1,
A2, A3, B1, B2 or B3 Preferred or Non-Voting Common Stock upon exchange
or conversion of the same for any such capital stock or Common Stock
pursuant to the Preferred Stock Purchase Agreement shall be permitted.
8.04 Leases. The Borrower will not permit the aggregate
payments (including, without limitation, any property taxes paid as additional
rent or lease payments) by the Borrower and
its Subsidiaries on a consolidated basis under agreements to rent or lease any
real or personal property (other than Capital Leases), during any fiscal year of
the Borrower to exceed $20,000,000.
8.05 Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and
the other Credit Documents;
(b) Indebtedness of the Borrower or its Subsidiaries existing
on the Third Restatement Effective Date to the extent same is listed on Schedule
8.05 and any extensions, renewals or refinancings thereof provided that the
aggregate principal amount thereof is not increased ("Existing Debt");
(c) Indebtedness of the Borrower or its Subsidiaries under any
Hedging Agreement existing prior to the Third Restatement Effective Date, and
Indebtedness of the Borrower under the Total Return Swap;
(d) Indebtedness arising under Capital Leases and the
Indebtedness secured by Liens permitted pursuant to Section 8.01(vi), provided
that (i) the aggregate principal amount of Indebtedness under this clause (d)
incurred in any fiscal year of the Borrower shall not exceed $20,000,000 and
(ii) after giving effect to the incurrence of such Indebtedness, the Borrower,
on a pro forma basis, would be in compliance with the provisions of Section 8.10
on the last day of the fiscal quarter last ended for which financial statements
are available;
(e) Indebtedness of the Borrower under Section 6(c) of the
Hoeganaes Stockholders Agreement arising in connection with the purchase of
shares permitted by Section 8.06;
(f) Indebtedness (i) of the Borrower or The Interlake
Companies, Inc. to any Subsidiary, including but not limited to any Subsidiary
which is a Subsidiary Guarantor (for purposes of this clause (f) only, each
Subsidiary Guarantor, a "Subsidiary Credit Party"), (ii) of a Subsidiary Credit
Party to either (a) the Borrower, (b) The Interlake Companies, Inc. or (c) any
other Subsidiary Credit Party; provided, however, if the Indebtedness permitted
under this clause (ii) is of a Subsidiary Credit Party which is not a Foreign
Subsidiary, then only Indebtedness to the extent permitted under subparagraph
(f)(ii)(a) or (b) hereof, (iii) of any Subsidiary which is not a Subsidiary
Credit Party to any other Subsidiary (other than Hoeganaes) which is not a
Subsidiary Credit Party, (iv) notwithstanding the foregoing, Indebtedness of any
Subsidiary which is not a Subsidiary Credit Party to a Subsidiary Credit Party
shall be permitted if (x) the aggregate principal amount thereof does not exceed
$45,000,000 at any time outstanding or (y) the proceeds of any Indebtedness
incurred in excess of the amount permitted under clause (x) are returned (by way
of dividend or otherwise) to a Borrower within five Business Days of the
incurrence thereof and the Administrative Agent shall have received five
Business Days' prior written notice of the incurrence of such
Indebtedness and subsequent notice that the dividend or other returning payment
has been made, and (v) of any Subsidiary Credit Party which is a Foreign
Subsidiary to any Foreign Subsidiary which is not a Subsidiary Credit Party;
(g) Obligations of the Borrower or a Subsidiary in respect of
letters of credit, guaranties and other similar instruments supporting
obligations incurred in the ordinary course of business, provided that the
aggregate principal amount of Indebtedness under this clause (g) shall not
exceed $15,000,000 at any one time outstanding;
(h) Other Indebtedness of the Borrower, provided that the
aggregate principal amount of Indebtedness under this clause (h) shall not
exceed $25,000,000 at any one time outstanding; and
(i) Indebtedness arising in connection with performance bonds
and surety bonds supporting obligations other than for borrowed money incurred
in the ordinary course of business consistent with past practices.
8.06 Advances, Investments and Loans. The Borrower will not,
and will not permit any of its Subsidiaries to, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations,
securities or assets of, or any other interest in, or make any capital
contribution to, any other Person, or hold any cash or Cash Equivalents, except
that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course
of business and payable or dischargeable in accordance with customary
trade terms;
(ii) the Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents, provided that so long as any Loans are
outstanding the aggregate amount of cash and Cash Equivalents held by
the Borrower and its Subsidiaries shall not exceed $10,000,000;
(iii) the Borrower and its Subsidiaries may make advances to
employees for moving, relocation, employee home purchase program and
travel expenses, drawing accounts and similar expenditures in the
ordinary course of business;
(iv) the Borrower may make contributions to the ESOP to pay
the administrative expenses of the ESOP; provided that contributions of
capital stock of the Borrower to the ESOP need not be so used and loans
to the ESOP permitted under Section 8.06(x) need not be so used;
(v) The Borrower or any Subsidiary may purchase shares of
stock of Hoeganaes offered to it pursuant to Section 6(c) of the
Hoeganaes Stockholders Agreement, provided that (A) after giving effect
to such purchase no Default or Event of Default would exist and (B) in
the event such purchase is not permitted by Clause (A) the Required
Banks shall consent to such purchase;
(vi) the Borrower and its Subsidiaries may acquire
Indebtedness of other Persons (other than pursuant to clause (vii)
below) in connection with the sale of assets permitted by Section 8.02,
provided that (x) the aggregate principal thereof, when added to
outstanding
Indebtedness owed the Borrower and its Subsidiaries described in
clause (vii) of this Section 8.06 at the time such Indebtedness is
acquired, shall not exceed $5 million and (y) the cash proceeds of such
Indebtedness are applied to repay the Loans to the extent required by
Section 4.02;
(vii) Indebtedness acquired by the Borrower or a Subsidiary
under Section 6(c) of the Hoeganaes Stockholders Agreement in
connection with a transaction permitted by Section 8.02(vii), provided
that the cash proceeds, as received, of such Indebtedness are applied
to repay the Loans to the extent required by Section 4.02;
(viii) the Borrower and its Subsidiaries may make the
intercompany loans permitted by Section 8.05(f) and the intercompany
transfer of assets permitted by Section 8.02(v);
(ix) the Borrower and its Subsidiaries may form new
Subsidiaries, provided that all transactions with, and investments in,
such new Subsidiaries shall comply with the provisions of this
Agreement;
(x) the Borrower may make one or more loans at any time or
from time to time to the ESOP Trust that shall not exceed $2,500,000 in
the aggregate, provided that the note or notes evidencing any such
loan, and any additional stock of the Borrower purchased by the ESOP
with the proceeds of any such Loan and not yet released from the
suspense account created or maintained in connection with each Loan,
are pledged to the Collateral Agent pursuant to security arrangements
satisfactory to it and the Borrower;
(xi) the Borrower and its Subsidiaries may (i) invest cash or
other property in partnerships and other joint ventures with other
Persons, provided that the aggregate amount of such investments shall
not exceed $5,000,000 in any fiscal year, and (ii) make Permitted
Acquisitions, provided that the aggregate amount of such Permitted
Acquisitions shall not exceed $10,000,000 in any fiscal year;
(xii) the Borrower may invest cash and other property in, or
make loans or advances to, Hoeganaes and its Subsidiaries in an
aggregate amount after the Third Restatement Effective Date not to
exceed $10,000,000, and Hoeganaes and its Subsidiaries
may invest cash or other property in, or make loans or advances to,
Subsidiaries which are wholly-owned, directly or indirectly, by
Hoeganaes; and
(xiii) (A) the Borrower and its Subsidiaries may make advances
or loans to, or investments in, Subsidiaries of the Borrower in an
amount not to exceed $5,000,000 annually and (B) the Borrower and its
Subsidiaries may make investments described in the proviso to the
definition of Capital Expenditures.
8.07 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction or series
of related transactions, whether or not in the ordinary course of business, with
any Affiliate, other than on terms and conditions substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm's-length transaction with a Person
other than an Affiliate, except that (i) loans, advances, transfers, sales or
purchases of shares and other transactions may be incurred and made to the
extent permitted by Sections 8.02, 8.03, 8.05 and 8.06 and (ii) the Borrower and
its Subsidiaries may effect intercompany transactions and transfers of goods and
services in the ordinary course of business and in conformity with the business
practices in effect on the Third Restatement Effective Date.
8.08 Capital Expenditures. (a) The Borrower will not, nor will
it permit any of its Subsidiaries to, make or incur Capital Expenditures that,
together with any amounts expended pursuant to Section 8.06(xiii) in such
period, exceed $60,000,000 in fiscal year 1998 or $40,000,000 in any fiscal year
thereafter plus, in the case of each fiscal year after 1998, an amount equal to
the excess, if any (up to a maximum of $10,000,000), of (a) the maximum
aggregate amount of Capital Expenditures permitted pursuant to this Section 8.08
for the immediately preceding fiscal year over (b) the aggregate amount of
Capital Expenditures actually incurred during such preceding fiscal year.
8.09 Minimum Consolidated Net Worth. The Borrower's
Consolidated Net Worth at any time may not be less than an amount equal to (i)
the Borrower's Consolidated Net Worth at March 29, 1998 (i.e., negative
$195,837,000), minus (ii) $20,000,000, plus (iii) 50% of Cumulative Consolidated
Net Income at such time.
8.10 Minimum Interest Coverage Ratio. The Borrower's Interest
Coverage Ratio may not be less than 1.65 to 1 at the end of any fiscal quarter
ending on or prior to June 30, 1999 or less than 1.70 to 1 at the end of any
fiscal quarter ending thereafter.
8.11 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements, etc. The Borrower will not, and will not permit any of its
Subsidiaries to, (i) make any voluntary or optional payment or prepayment on or
redemption or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities before due
for the purpose of paying when due) (a) any Existing Debt or Indebtedness under
Senior Notes or Permanent
Subordinated Debentures; provided that the Borrower may make Note Repurchases in
an aggregate amount not to exceed the amount of Disposition Proceeds at purchase
prices not to exceed one hundred ten percent of the face value of such Senior
Notes or Permanent Subordinated Debentures, or (b) Indebtedness under Section 6
of the Hoeganaes Stockholders Agreement, or the Convertible Preferred Stock,
(ii) amend or modify, or permit the amendment or modification of, any provision
of any agreement (including, without limitation, any purchase agreement,
indenture, loan agreement or security agreement) relating to any of the
foregoing, (iii) amend, modify or change its Certificate of Incorporation or
By-Laws or comparable organizational documents (including, without limitation,
by the filing or modification of any certificate of designation), or any
agreement entered into by it, with respect to its capital stock (except changes
which could not reasonably be expected to materially adversely affect the
Banks), or enter into any new agreement with respect to its capital stock,
except for those which could not reasonably be expected to materially adversely
affect the Banks, (iv) amend, modify or change any, or enter into any new
shareholders' agreements, except to the extent such action could not reasonably
be expected to materially adversely affect the Banks, (v) amend, modify or
change the Hoeganaes Stockholders Agreement or the Hoeganaes Research and
Development Agreement in any manner which could reasonably be expected to
materially adversely affect the Banks, or (vi) offer any shares of stock of
Hoeganaes pursuant to Section 6(c) of the Hoeganaes Stockholders Agreement.
8.12 Limitation on Restrictions on Subsidiary Dividends, Other
Distributions and on Granting of Liens. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of (I) any Subsidiary of the Borrower to (a) pay dividends or make
any other distributions on its capital stock or any other interest or
participation in its profits, owned by the Borrower or any Subsidiary of the
Borrower, or pay or repay any Indebtedness owed to the Borrower or a Subsidiary,
(b) make loans or advances to the Borrower or (c) transfer any of its properties
or assets to the Borrower or its Subsidiaries or (II) the Borrower or any of its
Subsidiaries to grant Liens or security interests on the assets of such Person
in favor of the Banks, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) this Agreement, (iii) to the
extent restricting the disposition of any property serving as security therefor,
any agreements relating to Indebtedness permitted pursuant to Section 8.05(d)
and (g), (iv) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of the Borrower or any of its Subsidiaries,
(v) customary restrictions on dispositions of real property interests found in
reciprocal easement agreements of the Borrower or any of its Subsidiaries, (vi)
agreements applicable only to Subsidiaries, partnerships or other joint ventures
permitted by Section 8.06(xi), and (vii) agreements governing Indebtedness of
Subsidiaries provided that the aggregate amount of such Indebtedness does not
exceed $5,000,000.
8.13 Limitation on Issuances of Capital Stock by Subsidiaries.
The Borrower shall not permit any of its Subsidiaries to issue any capital stock
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, capital stock, except for (i)
transfers and replacements of then outstanding shares of capital stock and (ii)
stock splits, stock
dividends and issuances which do not decrease the percentage ownership of the
Borrower or any of its Subsidiaries in any class of the capital stock of such
Subsidiary, provided that if the stock of the respective Subsidiary issuing any
shares of stock or other securities as permitted by this Section 8.13 is pledged
pursuant to a Pledge Agreement, then any shares issued pursuant to preceding
clauses (i) and (ii) shall be delivered directly to the Collateral Agent for
pledge pursuant to the respective Pledge Agreement.
8.14 Business. The Borrower will not, and will not permit its
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which the Borrower and its Subsidiaries are engaged on the Third
Restatement Effective Date, plus reasonable extensions and expansions thereof.
Section 9. Events of Default. Upon the occurrence of
any of the following specified events (each an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment
when due of any payment of principal of its Loans or Notes, (ii) default, and
such default shall continue for at least two Business Days, of any payment of
any Unpaid Drawing; or (ii) default, and such default shall continue for at
least five Business Days, of any payment of any interest on its Loans, Unpaid
Drawings or Notes, or of any Fees or any other amounts owing by it hereunder or
thereunder; or
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect; or
9.03 Covenants. The Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8 (other than a default under Section 8.01 arising by reason of a
non-consensual Lien securing an obligation not in excess of $5,000,000) or (ii)
default in the due performance or observance by it of any term, covenant or
agreement (other than those referred to in Sections 9.01 and 9.02 and clause (i)
of this Section 9.03) contained in this Agreement and such default shall
continue unremedied for a period of 30 days after written notice to the Borrower
by the Administrative Agent or the Required Banks. No waiver, modification,
alteration or amendment of this Section 9.03 or of any definition used in this
Section 9.03 or of any component definition used therein shall be permitted
without the prior written consent of the Required Banks; or
9.04 Default Under Other Agreements. (i) The Borrower or any
of its Subsidiaries shall (x) default in any payment of any Indebtedness (other
than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y) default
in the observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause (determined without regard to whether any notice is required),
any such Indebtedness to become due prior to its stated maturity or (ii) any
Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be
due and payable, or required to be prepaid other than by a regularly scheduled
or other mandatory required prepayment, prior to the stated maturity thereof;
provided that it shall not constitute an Event of Default pursuant to this
Section 9.04 unless the aggregate amount of all Indebtedness referred to in
clauses (i) and (ii) above exceeds $5,000,000 at any one time; or
9.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the Borrower or any of its Subsidiaries, and the petition is not
controverted within 30 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Subsidiaries, or the Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Subsidiaries, or there is
commenced against the Borrower or any of its Subsidiaries any such proceeding
which remains undismissed for a period of 30 days, or the Borrower or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 30 days; or the Borrower or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to maintain the minimum
funding standard required for any plan year or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code, (b) any Plan is, shall have been or is reasonably likely to be
terminated or the subject of termination proceedings under ERISA, (c) any Plan
shall have an Unfunded Current Liability or (d) the Borrower, any of its
Subsidiaries or an ERISA Affiliate has incurred or is reasonably likely to incur
a liability to or on account of a Plan under Section 515, 4062, 4063, 4064, 4201
or 4204 of ERISA; and there shall result from any event or events described in
clause (a), (b), (c) or (d) above (i) the imposition of a lien upon the assets
of the Borrower or any of its Subsidiaries or an ERISA Affiliate or (ii) the
granting of a security interest, or (iii) a liability or a material risk of
incurring a liability to the PBGC or the Internal Revenue Service or a Plan or a
trustee appointed under ERISA or a penalty under Section 4971 of the Code; and
which event or events described in clauses (i), (ii) and (iii) above, in the
reasonable opinion of the Required Banks, would have a material adverse effect
upon the business, operations, property,
assets, condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole; or
9.07 Pledge Agreements. Any Pledge Agreement shall cease to be
in full force and effect, or shall cease to give the Collateral Agent the Liens,
rights, powers and privileges purported to be created thereby in favor of the
Collateral Agent for the benefit of the Banks, or any Credit Party shall default
in the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to any Pledge Agreement; or
9.08 Other Security Documents. Any Security Document (other
than a Pledge Agreement) shall cease to be in full force and effect, or shall
cease to give the Collateral Agent the Liens, rights, powers and privileges
purported to be created thereby in favor of the Collateral Agent for the benefit
of the Banks, or any Credit Party shall default in the due performance and
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any Security Document and such default shall, in the case
of such default or failure to observe any term, covenant or agreement other than
those found in Sections 2.04, 2.05 and 2.07 of any Security Agreement, continue
unremedied for a period of 30 days after written notice to such Credit Party by
any of the Collateral Agent, the Administrative Agent or the Required Banks; or
9.09 Guaranty. Any Guaranty or any provision thereof shall
cease to be in full force and effect as to any Guarantor (other than in
accordance with the express terms thereof), or any Guarantor or any Person
acting by or on behalf of any Guarantor shall deny or disaffirm such Guarantor's
obligations under its Guaranty or the respective Guarantor shall default in the
due performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to any Guaranty; or
9.10 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any of its Subsidiaries involving in the
aggregate for the Borrower and its Subsidiaries a liability of $5,000,000 or
more in excess of available coverage under applicable insurance, and all such
judgments or decrees shall not have been vacated, discharged pending appeal
within 30 days from the entry thereof; or
9.11 Change in Control. (a) If during any period of two
consecutive years, individuals who at the beginning of any such period
constitute the Directors of the Borrower cease for any reason to constitute at
least a majority thereof, unless the election, or the nomination for election by
the Borrower's stockholders, of each Director of the Borrower first elected
during such period was approved by a vote of at least two-thirds of the
Directors of the Borrower then still in office who were Directors of the
Borrower at the beginning of any such period or (b) the acquisition, whether
directly or indirectly, by any Person or "group" (as defined in Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended) (other than an employee
benefit or stock ownership plan of the Borrower) of more than 50% of the common
stock of the Borrower shall have occurred or (c) any change of control or
similar event (including, without limitation, any Fundamental
Change, as defined in the form of Convertible Preferred Stock) shall occur which
requires, or gives any holder the right to require, the redemption of the
Convertible Preferred Stock; or
9.12 Environmental Liabilities. The Borrower makes payments,
on and after the Third Restatement Effective Date, pursuant to CERCLA with
respect to remediation at the St. Louis River Site, and such payments exceed (i)
$10,000,000 in the aggregate in any single fiscal year, or (ii) $20,000,000 in
the aggregate; provided, that the Borrower may carry over 100% of any year's
unused remediation expenditures;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall upon the written
request of the Required Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent, any Bank or the holder of any Note to enforce its claims
against any Credit Party (provided, that, if an Event of Default specified in
Section 9.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written notice by the Administrative Agent to the
Borrower as specified in clauses (i), (ii) and (v) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitments of each Bank shall forthwith
terminate immediately and any Fees shall forthwith become due and payable
without any other notice of any kind; (ii) declare the principal of and any
accrued interest in respect of all Loans and the Notes and all obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; (iii) in the case of the
Collateral Agent, exercise any rights or remedies in its capacity as Collateral
Agent under the Security Documents; (iv) terminate any Letter of Credit which
may be terminated in accordance with its terms; and (v) direct the Borrower to
pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 9.05 in respect of the
Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amounts of cash, to be held as security for the reimbursement
obligations of the Borrower for Drawings that may subsequently occur thereunder,
equal to the aggregate Stated Amount of all Letters of Credit issued and then
outstanding.
Section 10. Definitions and Accounting Terms.
10.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Additional Security Documents" shall mean all agreements,
mortgages and other documentation delivered pursuant to Section 7.09.
"Adjusted CD Rate" shall mean, on any day, the sum (rounded to
the nearest 1/100 of 1%) of (1) the rate obtained by dividing (x) the most
recent weekly average dealer offering rate
for negotiable certificates of deposit with a three-month maturity in the
secondary market as published in the most recent Federal Reserve System
publication entitled "Select Interest Rates," published weekly on Form H.15 as
of the date hereof, if such publication or a substitute containing the foregoing
rate information shall not be published by the Federal Reserve System for any
week, the weekly average offering rate determined by the Administrative Agent on
the basis of quotations for such certificates received by it from three
certificate of deposit dealers in New York of recognized standing or, if such
quotations are unavailable, then on the basis of other sources reasonably
selected by the Administrative Agent, by (y) a percentage equal to 100% minus
the stated maximum rate of all reserve requirements as specified in Regulation D
applicable on such day to a three-month certificate of deposit of a member bank
of the Federal Reserve System in excess of $100,000 (including, without
limitation, any marginal, emergency, supplemental, special or other reserves),
plus (2) the then daily net annual assessment rate as estimated by the
Administrative Agent for determining the current annual assessment payable by
the Administrative Agent to the Federal Deposit Insurance Corporation for
insuring three month certificates of deposit.
"Adjusted LIBOR Rate" shall mean with respect to a Borrowing
of Eurodollar Loans for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16th of 1%) equal to the product of (a)
LIBOR in effect for such Interest Period and (b) a fraction (expressed as a
decimal) the numerator of which is the number 1 and the denominator of which is
the number 1 minus the then stated maximum rate of all reserve requirements
(including without limitation any marginal, emergency, supplemental, special or
other reserves) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D). For purposes hereof, the term
"LIBOR" shall mean the arithmetic average (rounded upwards, if necessary, to the
next 1/16th of 1%) determined by the Administrative Agent at which dollar
deposits approximately equal in principal amount to the Administrative Agent's
portion of the respective Borrowing of Eurodollar Loans and for a maturity
comparable to such Interest Period are offered to the principal London office of
the Administrative Agent in the London interbank market at approximately 11:00
A.M., London time, two Business Days prior to the commencement of such Interest
Period.
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Affiliate" shall mean, with respect to any Person, any other
Person (i) directly or indirectly controlling (including, but not limited to,
all directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person or (ii) that directly or indirectly
owns more than 5% of the voting securities of such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall mean this Third Amended and Restated Credit
Agreement, as modified, supplemented or amended from time to time.
"Alternate Base Rate" shall mean on any day the highest of (i)
the Prime Rate for such day, (ii) the Adjusted CD Rate plus 1% and (iii) the
Federal Funds Effective Rate plus 1/2%.
"Applicable Margin" shall mean a percentage per annum equal to
(i) in the case of Base Rate Loans and all other interest rates determined by
reference to the Alternate Base Rate, 1.00% and (ii) in the case of Eurodollar
Loans, 2.00%.
"Assignment and Acceptance" shall have the meaning provided in
Section 12.04(b).
"Bank" shall mean each financial institution initially party
hereto in its capacity as a "Bank", as well as any institution which becomes a
"Bank" hereunder pursuant to Section 12.04.
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate Loans" shall mean any Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the incurrence of one Type of Loan by
the Borrower from the Banks on a given date (or resulting from conversions on a
given date) having in the case of Eurodollar Loans the same Interest Period.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking institutions
are authorized by law or other government action to close and (ii) with respect
to all notices and determinations in connection with, and payments of principal
and interest on, Eurodollar Loans, any day which is a Business Day described in
clause (i) above and which is also a day for trading by and between banks in the
London interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures, (whether paid in cash or accrued as liabilities
during that period), excluding interest capitalized during construction, by the
Borrower and its Subsidiaries during such period that, in conformity with
generally accepted accounting principles, are required to be included in or
reflected by the property and equipment or similar fixed asset accounts
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries, but excluding expenditures made in connection with the replacement
or restoration of assets, to the extent reimbursed or financed from insurance
proceeds paid on account of the loss of or damage to the assets being replaced
or restored, or from awards of
compensation arising from the taking by condemnation or eminent domain of such
assets being replaced or from the proceeds of the sale or other disposition of
such assets under the threat of such taking; provided that there shall be
included in the definition of Capital Expenditures up to $5,000,000 in any
fiscal year in expenditures of the Borrower for (i) securities acquired by the
Borrower and/or its Subsidiaries of another Person representing at least 50% of
the voting and economic interests in such Person and (ii) assets the acquisition
of which would not otherwise constitute a Capital Expenditure and would not
otherwise be permitted under Section 8.06. With respect to equipment which is
purchased substantially simultaneously with the trade-in of existing equipment
owned by the Borrower or its Subsidiaries, only that portion of the purchase
price which exceeds the greater of the book value or the trade-in amount of the
equipment being traded in at such time shall be included in Capital
Expenditures.
"Capital Lease", as applied to any Person, shall mean any
lease of any property (whether real, personal or mixed) by that Person as lessee
which in conformity with generally accepted accounting principles, is, or is
required to be, accounted for as a capital lease on the balance sheet of that
Person.
"Capital Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities in accordance with generally
accepted accounting principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than six months from the date of acquisition, (ii) time deposits and
certificates of deposit of any commercial bank incorporated in the United States
of recognized standing having capital and surplus in excess of $100,000,000 with
maturities of not more than six months from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above, provided that
there shall be no restriction on the maturities of such underlying securities
pursuant to this clause (iii) entered into with a bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued by
the parent corporation of any commercial bank (provided that the parent
corporation and the bank are both incorporated in the United States) of
recognized standing having capital and surplus in excess of $500,000,000 and
commercial paper issued by any Person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Ratings Group or at
least P-1 or the equivalent thereof by Moody's Investors Service, Inc. and in
each case maturing not more than six months after the date of acquisition by
such Person, (v) general obligations issued or directly and fully guaranteed or
otherwise supported by the full taxation authority of any municipal corporation
of any State of the United States of America and rated at least A-1 or the
equivalent thereof by Standard & Poor's Ratings Group or at least P-1 or the
equivalent thereof by Moody's Investors Service, Inc., in each case with a
maturity of not more than 365 days from the date of acquisition
thereof, and (vi) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in clauses (i) through
(v) above.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as same may be amended from time to
time.
"Chase" shall mean The Chase Manhattan Bank.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time. Section references to the Code are to the Code, as in
effect at the date of this Agreement, and to any subsequent provisions of the
Code amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all "Collateral" under, and as defined
in, any Security Document.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Banks pursuant to the Security Documents.
"Commitment" shall mean, with respect to each Bank, the amount
set forth opposite such Bank's name in Schedule I directly below the column
entitled "Commitment," as such amount may be reduced from time to time pursuant
to Sections 3.02, 3.03 and 9 or otherwise modified as provided in Section 12.04.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Common Stock" shall have the meaning provided in Section
6.13.
"Company Pledge Agreement" shall mean the Pledge Agreement
entered into by the Borrower pursuant to the Original Credit Agreement, as
amended, modified or supplemented from time to time.
"Company Security Agreement" shall mean the Company Security
Agreement entered into pursuant to the Original Credit Agreement, as amended,
modified or supplemented from time to time.
"Consolidated Cash Interest Expense" shall mean, for any
period, net interest expense, whether paid or accrued (including the interest
component of Capital Lease Obligations), of the Borrower and its Subsidiaries on
a consolidated basis, including, without limitation, (i) all commissions,
discounts and other fees and charges owed with respect to letters of credit,
(ii) net costs under Hedging Agreements and (iii) interest capitalized during
construction, but excluding, however, interest expense not payable in cash
(including amortization of discount and deferred debt
expenses and amortization of non-cash discount and non-cash cost of any Hedging
Agreements), all as determined in conformity with generally accepted accounting
principles.
"Consolidated EBIT" shall mean, for each period, the earnings
for such period before extraordinary items, minority interests, provisions for
income taxes, and net interest expense.
"Consolidated EBITDA" shall mean, for any period, the sum of
(i) Consolidated EBIT for such period, plus (ii) depreciation and amortization
expenses deducted in determining Consolidated EBIT for such period plus (iii)
non-cash losses deducted in calculating Consolidated EBIT less non-cash gains
added in determining Consolidated EBIT.
"Consolidated Net Income" shall mean for any fiscal period the
net income of the Borrower and its Subsidiaries for such fiscal period
determined on a consolidated basis.
"Consolidated Net Worth" shall mean, on any date of
determination thereof, shareholders' equity (including preferred stock) of the
Borrower and its Subsidiaries on a consolidated basis.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Bank" shall mean each Original Bank with a
Commitment under this Agreement (immediately upon giving effect to this
Agreement on the Third Restatement Effective Date).
"Convertible Preferred Stock" shall mean, collectively, the
Series A1, A2 and A3 Convertible Exchangeable Preferred Stock and the Series B1,
B2 and B3 Convertible Preferred Stock referred to in Section 6.13.
"Credit Documents" shall mean this Agreement and once executed
and delivered pursuant to the terms of the Original Credit Agreement, the Prior
Credit Agreement or this Agreement, each Note, each Letter of Credit Request,
each Notice of Borrowing, each Notice of Conversion, each Security Document,
each Hedging Agreement and each Guaranty, except as released prior to or in
accordance with the execution of this Agreement.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean and include the Borrower and each
Subsidiary of the Borrower which has executed and delivered any Credit Document.
"Cumulative Consolidated Net Income" shall mean, on any date,
Consolidated Net Income on a cumulative basis for all fiscal quarters of the
Borrower ending after June 30,1998 (for which Consolidated Net Income was a
positive number), all determined on the basis of generally accepted accounting
principles as in effect on June 30, 1998.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Distribution" with respect to any Person shall mean that such
Person has declared or paid any dividend or returned any capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than capital stock of the Borrower) or cash to its
stockholders, as such, or redeemed, retired, purchased, or otherwise acquired,
directly or indirectly, for consideration, any shares of any class of its
capital stock outstanding on or after the Third Restatement Effective Date (or
any options or warrants issued by such Person with respect to its capital
stock), or set aside any funds for any of the foregoing purposes, or shall have
permitted any of its Subsidiaries to purchase or otherwise acquire for a
consideration any shares of any class of the capital stock of such Person
outstanding on or after the Third Restatement Effective Date (or any options or
warrants issued by such Person with respect to its capital stock). Without
limiting the foregoing, "Distributions" with respect to any Person shall also
include all payments made or required to be made by such Person with respect to
any stock appreciation rights plans, equity incentive or achievement plans or
any similar plans or the setting aside of any funds for the foregoing purposes.
"Documentation Agent" shall have the meaning provided in the
first paragraph hereof.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States (expressed in dollars).
"Drawing" shall have the meaning provided in Section 2.05(b).
"Eligible Assignee" shall mean (a) a commercial bank having
total assets in excess of $1,000,000,000, or (b) a finance company, insurance
company or other financial institution or fund, reasonably acceptable to the
Administrative Agent, who has regularly engaged in making, purchasing, or
investing in loans and having total assets in excess of $300,000,000.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time. Section references to ERISA are to ERISA,
as in effect at the date of this Agreement, and to any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any person (as defined in Section
3(9) of ERISA) which together with the Borrower or any of its Subsidiaries would
be deemed to be a member of the same "controlled group" within the meaning of
Section 414(b), (c), (m) or (o) of the Code.
"ESOP" shall mean The Interlake Corporation Employee Stock
Ownership Plan effective as of September 1, 1989.
"ESOP Trust" shall mean the trust created and maintained under
the ESOP pursuant to the ESOP Trust Agreement, as amended from time to time to
the extent permitted herein.
"ESOP Trust Agreement" shall mean The Interlake Corporation
Employee Stock Ownership Trust Agreement by and between the Borrower and LaSalle
National Trust, N.A. (successor to LaSalle National Bank) creating, and
governing the terms of, the ESOP Trust.
"Eurodollar Loans" shall mean any Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Event of Default" shall have the meaning provided in
Section 9.
"Exchange Debentures" shall mean the Junior Convertible
Subordinated Debentures exchangeable in certain circumstances for outstanding
shares of Convertible Preferred Stock in accordance with the terms thereof.
"Existing Debt" shall have the meaning provided in Section
8.05(b).
"Facing Fee" shall have the meaning provided in Section
3.01(d).
"Federal Funds Effective Rate" shall mean 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 the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"First National" shall mean The First National Bank of
Chicago.
"Foreign Subsidiary" shall mean each Subsidiary of the
Borrower not incorporated under the laws of the United States or of any State
thereof.
"Guarantor" shall mean any Person guarantying the obligations
of another pursuant to a Guaranty.
"Guaranty" shall mean and include the Subsidiary Guaranties.
"Hedging Agreement" shall mean any interest rate or currency
fluctuation protection agreement or any other similar interest rate or currency
fluctuation hedging transaction, including, without limitation, swaps, caps,
floors, collars and similar agreements.
"Hoeganaes" shall mean Hoeganaes Corporation, a Delaware
corporation.
"Hoeganaes Research and Development Agreement" shall mean the
Research and Development Agreement dated February 8, 1994 between Hoeganaes AB
and Hoeganaes Corporation, as such Agreement was in effect on the Third
Restatement Effective Date without giving effect to any amendment, modification,
or supplement thereto not permitted by Section 8.11.
"Hoeganaes Stockholders Agreement" shall mean the Stockholders
Agreement dated February 8, 1994 by and between The Interlake Companies, Inc.,
Hoeganaes Aktiebolag and Hoeganaes, as such Agreement was in effect on the Fifth
Amendment Effective Date without giving effect to any amendment, modification or
supplement thereto without the prior written consent of the Required Banks.
"Inactive Subsidiary" shall mean any Subsidiary which is not
engaged in any business activities and the assets and liabilities of which, in
each case, are less than $100,000.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the face amount of all letters of credit issued for
the account of such Person, (iii) all liabilities of the types described in
clauses (i), (ii), (iv), (v) and (vi) of this definition which are secured by
any Lien on any property owned by such Person, whether or not such liabilities
have been assumed by such Person, (iv) the aggregate amount required to be
capitalized under leases under which such Person is the lessee, (v) all
Contingent Obligations of such Person and (vi) all obligations of such Person
under Hedging Agreements or other similar agreements.
"Interest Coverage Ratio" shall mean the ratio, calculated at
the end of each fiscal quarter for the four fiscal quarter period then ended, of
(a) Consolidated EBITDA to (b) Consolidated Cash Interest Expense.
"Interest Period" shall have the meaning provided in Section
1.09.
"Issuing Bank" shall mean any Bank which at the request of the
Borrower and with the consent of the Administrative Agent agrees, in such Bank's
sole determination, to become an Issuing Bank for purposes of issuing Letters of
Credit pursuant to Section 2.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(c).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit and
(ii) the aggregate amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Lien" shall mean any mortgage, pledge, hypothecation,
encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any lease having
substantially the same effect as any of the foregoing and any assignment or
deposit arrangement in the nature of a security device).
"Loan" shall have the meaning set forth in 1.01.
"Margin Stock" shall have the meaning provided in Regulation U
of the Board of Governors of the Federal Reserve System.
"Material Subsidiary" shall mean (x) each Subsidiary which is
not a Foreign Subsidiary and (y) each Foreign Subsidiary other than a Subsidiary
(i) the fair market value of the assets of which are less than $1 million and
(ii) the consolidated net income of which for the fiscal year most recently
ended was less than $500,000.
"Maturity Date" shall mean July 31, 2000.
"Mortgage" shall have the meaning assigned thereto in the
Original Credit Agreement.
"Mortgage Policies" shall have the meaning provided in the
Original Credit Agreement.
"Mortgaged Properties" shall mean and include all real
properties owned or leased by the Borrower and/or any of its Subsidiaries to the
extent listed on Schedule 10.01(a) hereof.
"Net Cash Proceeds" shall mean the Net Sale Proceeds of any
asset sale which are paid in cash including the cash received by way of deferred
payments pursuant to a note receivable or otherwise (other than the portion of
such deferred payment constituting interest) but only as and when so received.
"Net Sale Proceeds" shall mean, with respect to any sale of
assets, the amount of cash, the principal amount of promissory notes or other
debt securities, and the fair market value of all other non-cash proceeds
received in connection therewith, net of reasonable costs of sale in connection
therewith, brokerage fees, payments of Indebtedness associated with Liens
encumbering such assets and income taxes, other than income taxes not currently
payable in cash.
"New Banks" shall mean each of the Persons listed on Schedule
I hereto which is not a Continuing Bank.
"Non-Public Information" shall have the meaning set forth in
Section 12.16.
"Non-Voting Common Stock" shall have the meaning provided in
Section 6.13.
"Note" shall have the meaning provided in Section 1.05.
"Note Repurchase" shall mean any acquisition, repurchase,
redemption, retirement or other purchase of Permanent Subordinated Debentures or
Senior Notes.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent shown opposite its name on the signature pages hereof, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent or any Bank pursuant to the terms of this Agreement or any
other Credit Document.
"Original Bank" shall mean a Bank with a commitment on
Schedule I of the Prior Credit Agreement.
"Original Credit Agreement" shall mean the Credit Agreement,
dated as of September 27, 1989, among the Borrower, certain Subsidiaries, the
Banks, Chemical Bank (now The Chase Manhattan Bank), as Administrative Agent and
The First National Bank of Chicago, as Co-Agent, as amended and restated as of
May 28, 1992 and as in effect immediately prior to the Second Restatement
Effective Date (as defined in the Prior Credit Agreement).
"Original Loans" shall mean the "Loans" under, and as defined
in, the Prior Credit Agreement.
"Participant" shall have the meaning provided in Section
2.04(a).
"Payment Office" shall mean the office of the Administrative
Agent located at 270 Park Avenue, New York, New York 10017, or such other office
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA or any successor thereto.
"Percentage" shall mean, for each Bank, a fraction (expressed
as a percentage), the numerator of which is the Commitment of such Bank, as in
effect at the time of determination, and the denominator of which is the Total
Commitment, as in effect at such time.
"Permanent Subordinated Debentures" shall mean the Senior
Subordinated Debentures due 2002 of the Borrower as issued pursuant to the
Indenture dated as of June 18, 1992 between the Borrower and Harris Trust and
Savings Bank, as trustee.
"Permitted Acquisition" shall mean the acquisition by the
Borrower or any Subsidiary thereof of substantially all of the assets or not
less than 50% of the capital stock of any other Person engaged in a line of
business in which the Borrower or such Subsidiary is engaged on the Third
Restatement Effective Date, made on a negotiated basis with the approval of the
Board of Directors or shareholders of the Person to be acquired, and at a time
when no Default or Event of Default shall exist or result therefrom.
"Permitted Encumbrances" shall mean (i) those liens,
encumbrances and other matters affecting title to any Mortgaged Property listed
in the Mortgage Policies in respect thereof and found acceptable by the
Collateral Agent in its reasonable judgment, (ii) as to any particular Mortgaged
Property at any time, such easements, encroachments, covenants, rights of way,
minor defects, irregularities or encumbrances on title which are not unusual
with respect to property similar in character to any such Mortgaged Property and
which do not, in the reasonable opinion of the Collateral Agent, materially
impair such Mortgaged Property for the purpose for which it is held by the
mortgagor thereof, or the lien held by the Collateral Agent, (iii) zoning, land
use and similar laws, rules and regulations pertaining to the Mortgaged
Properties, which are not violated by the existing improvements and the present
use made by the Mortgagor thereof of the Land and Improvements (as defined in
the respective Mortgage), (iv) real estate taxes, general and special
assessments not yet delinquent, (v) Liens permitted under Sections 8.01(i),
(iii) and (iv) to the extent affecting the respective Mortgaged Property and
(vi) such other items as the Collateral Agent may consent to.
"Permitted Liens" shall have the meaning provided in Section
8.01(iii).
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan
(as each such term is defined in Section 4001 of ERISA) subject to Title IV of
ERISA which is maintained or contributed to, or at any time during the five
calendar years preceding the Third Restatement Effective Date was maintained or
contributed to, for or on behalf of employees of the Borrower or a Subsidiary or
an ERISA Affiliate.
"Pledge Agreement Collateral" shall mean all "Collateral"
under, and as defined in, each of the Pledge Agreements.
"Pledge Agreements" shall mean and include, each Company
Pledge Agreement and each Subsidiary Pledge Agreement.
"Pledged Securities" shall mean all "Pledged Securities"
under, and as defined in, the Pledge Agreements.
"Preferred Stock Purchase Agreement" shall mean, collectively,
the Preferred Stock Purchase Agreement dated as of March 6, 1992 (the "Purchase
Agreement") between the Borrower and the other parties listed on the signature
pages thereto, the Certificates of Designation and the Exchange Debentures (each
as defined in the Purchase Agreement).
"Prime Rate" shall mean the rate which Chase announces from
time to time as its prime lending rate, the Prime Rate to change when and as
such prime lending rate changes. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
Chase may make commercial loans or other loans at rates of interest at, above or
below the Prime Rate.
"Prior Credit Agreement" shall mean the Credit Agreement,
dated as of September 27, 1989, among the Borrower, certain Subsidiaries, the
Banks, Chemical Bank (now The Chase Manhattan Bank), as Administrative Agent and
The First National Bank of Chicago, as Co-Agent, as amended and restated as of
May 28, 1992 and as of December 22, 1997 and as in effect immediately prior to
the Third Restatement Effective Date.
"Projections" shall have the meaning provided in Section
6.07(c).
"RCRA" shall mean the Resources Conservation and Recovery Act,
as the same may be amended from time to time.
"Register" shall have the meaning provided in Section
12.04(d).
"Registered Notes" shall have the meaning provided in Section
12.04(e).
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Reportable Event" shall mean an event described in Section
4043(b) of ERISA with respect to a Plan (as to which the 30 day notice
requirement has not been waived by the PBGC) which is a single-employer plan (as
defined in Section 4001(a)(15) of ERISA).
"Required Banks" shall mean Banks, the sum of whose
Commitments (or after termination thereof, outstanding Loans) represent an
amount greater than fifty percent of the Total Commitment (or after the
termination thereof, the sum of the then total outstanding Loans).
"SEC" shall have the meaning provided in Section 7.01(h).
"Secured Party" shall mean the Administrative Agent, the Banks
and any other Person granted the benefit of a security interest pursuant to the
terms of any Security Document.
"Security Agreement" shall mean the Company Security Agreement
and each Subsidiary Security Agreement.
"Security Document Collateral" shall mean the "Collateral" as
described and defined in each respective Security Document other than any Pledge
Agreement.
"Security Documents" shall mean, once executed and delivered
pursuant to the Original Credit Agreement or this Agreement, each Pledge
Agreement, each Security Agreement, the Cash Collateral Agreement, dated March
14, 1990, executed by the Borrower and the Collateral Agent for the benefit of
the Banks, and each Mortgage.
"Senior Notes" shall mean the Senior Notes due 2001 of the
Borrower as issued pursuant to the Indenture dated as of June 26, 1995 between
the Borrower and Bank One, Columbus, N.A. as Trustee.
"Series A1 Preferred" shall have the meaning provided in
Section 6.13.
"Series A2 Preferred" shall have the meaning provided in
Section 6.13.
"Series A3 Preferred" shall have the meaning provided in
Section 6.13.
"Series A3 Purchase Agreement" shall mean the Preferred Stock
Purchase Agreement dated as of May 7, 1992 between the Borrower and the other
parties listed on the signature pages thereto and the Certificates of
Designation (as defined in the Series A3 Purchase Agreement).
"Series B1 Preferred" shall have the meaning provided in
Section 6.13.
"Series B2 Preferred" shall have the meaning provided in
Section 6.13.
"Series B3 Preferred" shall have the meaning provided in
Section 6.13.
"Specified Bank" shall have the meaning provided in Section
12.04(e).
"St. Louis River Site" shall mean, the CERCLA (Superfund) site
located in West Duluth, Minnesota, in regard to which the Borrower and others
have been identified as responsible parties, and which is generally referred to
as the St. Louis River/Interlake/Duluth Tar site.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Stated Amount" of each Letter of Credit shall mean the
maximum amount available to be drawn thereunder, determined without regard to
whether any conditions to drawing could then be met.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of the stock of which of any class or classes having by the terms
thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at
the time stock of any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
owned by such Person and/or one or more Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Subsidiaries of such Person has more than a 50% equity
interest at the time, provided that no Person which constitutes an Inactive
Subsidiary shall be deemed to be a Subsidiary of the Borrower for purposes of
this Agreement. Unless otherwise expressly provided, all references herein to
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each Subsidiary of the
Borrower other than Hoeganaes.
"Subsidiary Guaranty" shall mean each Subsidiary Guaranty
entered into pursuant to the Original Credit Agreement, and once executed and
delivered, any guaranty entered into pursuant to Section 7.09 hereto, each as
amended, modified or supplemented from time to time.
"Subsidiary Pledge Agreement" shall mean each Subsidiary
Pledge Agreement entered into pursuant to the Original Credit Agreement or this
Agreement, and once executed and delivered, any pledge agreement entered into
pursuant to Section 7.09, each as amended, modified or supplemented from time to
time.
"Subsidiary Pledgor" shall mean each Subsidiary of the
Borrower which owns capital stock of a Material Subsidiary of the Borrower other
than Hoeganaes.
"Subsidiary Security Agreement" shall mean and include each of
the Subsidiary Security Agreements entered into pursuant to the Original Credit
Agreement and shall include, after the execution and delivery thereof, any such
security agreements entered into pursuant to Section 7.09, each as amended,
modified or supplemented from time to time.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Third Restatement Effective Date" shall have the meaning set
forth in Section 12.10.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Return Swap" shall mean the Hedging Agreement to be
entered into by the Borrower the effect of which is that (i) the counterparty
agrees to make payments to the Borrower based upon a notional principal amount
not to exceed $50,000,000, at the per annum interest rate applicable to the
Permanent Subordinated Debentures, (ii) the Borrower agrees to make payments to
such counterparty based upon the same notional principal amount at a per annum
rate of interest based upon the London interbank offered rate, as determined by
such counterparty, plus a margin
to be determined, and (iii) the Borrower shall deposit with the counterparty, as
cash collateral, an amount equal to up to twenty percent (20%) of the foregoing
notional amount, subject to increase from time to time based upon the market
price, from time to time, of the Permanent Subordinated Debentures.
"Total Unutilized Commitment" shall mean, at any time, the sum
of the Unutilized Commitments of each of the Banks.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Type" shall mean any type of Loan determined with respect to
the interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar
Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the present value of the accrued benefits under the Plan as of the
close of its most recent plan year exceeds the fair market value of the assets
allocable thereto as of the close of its most recent plan year, determined in
accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States
of America.
"Unpaid Drawings" shall have the meaning provided in Section
2.05(a).
"Unutilized Commitment" of any Bank at any time shall mean the
Commitment of such Bank less (i) the aggregate principal amount of Loans made by
such Bank and then outstanding and (ii) the product of such Bank's Percentage
and the Letter of Credit Outstandings at such time.
Section 11. The Administrative Agent.
11.01 Appointment. The Banks hereby designate Chase as
Administrative Agent (for purposes of this Section 11, the term "Administrative
Agent" shall include Chase in its capacity as Collateral Agent pursuant to the
Security Documents) to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through
its officers, directors, agents or employees. The Documentation Agent shall
have no duties
hereunder.
11.02 Nature of Duties. The Administrative Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the Security Documents. Neither the Administrative Agent nor any of its
officers, directors, agents or employees shall be liable for any action taken or
omitted by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, unless caused by its or their gross negligence
or willful misconduct. The duties of the Administrative Agent shall be
mechanical and administrative in nature; the Administrative Agent shall not have
by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Bank; and nothing in this Agreement or any other
Credit Document, expressed or implied, is intended to or shall be so construed
as to impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein.
11.03 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Bank, to
the extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of each Credit
Party in connection with the making and the continuance of the Loans and the
taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of each Credit Party and, except as expressly
provided in this Agreement, the Administrative Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Bank
with any credit or other information with respect thereto, whether coming into
its possession before the making of the Loans, or at any time or times
thereafter. The Administrative Agent shall not be responsible to any Bank for
any recitals, statements, information, representations or warranties herein or
in any document, certificate or other writing delivered in connection herewith
or for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Credit Document (except insofar as this Agreement or any other Credit
Document expressly imposes obligations upon the Administrative Agent) or the
financial condition of any Credit Party or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Credit Document, or the financial
condition of any Credit Party or the existence or possible existence of any
Default or Event of Default.
11.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Banks;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank shall have any right
of action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under any
other Credit Document
in accordance with the instructions of the Required Banks or where otherwise
expressly provided herein, such other requisite number of Banks.
11.05 Reliance. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed (in
the absence of gross negligence on its part) to be the proper Person and, with
respect to all legal matters pertaining to this Agreement and any other Credit
Document and its duties hereunder and thereunder, upon advice of counsel
selected by it.
11.06 Indemnification. To the extent the Administrative Agent
is not reimbursed and indemnified by the Borrower, the Banks will reimburse and
indemnify the Administrative Agent, in proportion to their respective
Commitments, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in performing its duties hereunder or
under any other Credit Document, in any way relating to or arising out of this
Agreement or any other Credit Document; provided that no Bank shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
11.07 The Administrative Agent in its Individual Capacity.
With respect to its obligation to make Loans and participate in Letters of
Credit under this Agreement, the Administrative Agent shall have the rights and
powers specified herein for a "Bank" and may exercise the same rights and powers
as though it were not performing the duties specified herein; and the term
"Banks," "holders of Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent and/or its Affiliates may own stock of any
Credit Party and may accept deposits from, lend money to, and generally engage
in any kind of banking, trust 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 the Banks.
11.08 Holders. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. 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 the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
endorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
11.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
25 Business Days' prior written notice to the Borrower and the Banks. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 25 Business Day period, the Administrative Agent, with the
consent of the Borrower, shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 30th Business Day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Banks shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Banks appoint a successor
Administrative Agent as provided above.
Section 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of the Credit Documents
and the documents and instruments referred to therein (including, without
limitation, the reasonable fees and disbursements of one special counsel and of
any local or foreign counsel); (ii) pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent in connection with any amendment, waiver or
consent relating to the Credit Documents and the documents and instruments
referred to therein (including without limitation, the reasonable fees and
disbursements of one special counsel and of any local or foreign counsel) and of
the Administrative Agent and each of the Banks in connection with the
enforcement of the Credit Documents and the documents and instruments referred
to therein (including, without limitation, the reasonable fees and disbursements
of counsel for the Administrative Agent and for each of the Banks; (iii) pay and
hold each of the Banks harmless from and against any and all present and future
stamp and other similar taxes with respect to the foregoing matters and save
each of the Banks harmless from and against any and all liabilities with respect
to or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iv) indemnify the
Administrative Agent and each Bank, its officers, directors, employees,
representatives and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages, or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding (whether
or not the Administrative Agent or any Bank is a party thereto) related to the
entering into and/or performance of any Credit Document or the use of the
proceeds of any Loans hereunder or the consummation of any transactions
contemplated in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified); provided that the Borrower shall not be required to pay for the
legal fees and expenses of more than one outside counsel for all persons
indemnified under this clause (iv) unless, in the written opinion of outside
counsel reasonably satisfactory to the Borrower, representation of all such
indemnified persons would be inappropriate due to the existence of an actual or
potential conflict of interest. The Administrative Agent and each Bank agrees to
notify the Borrower promptly of any assertion against it (or any of its
officers, directors, employees, representatives or agents) of any claim or the
commencement of any action or proceeding relating to any transaction
contemplated hereby, provided that the failure of the Administrative Agent or
such Bank to notify the Borrower shall not affect the rights of the
Administrative Agent, any Bank or any other person entitled to indemnification
pursuant to this Section 12.01 but the Borrower shall not be deemed to be in
default of its obligation to so indemnify until such notice has been received by
the Borrower and the Borrower has failed to perform as required by this Section
12.01.
12.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and continuance of an Event
of Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to any Credit
Party or to any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by such Bank (including
without limitation by branches and agencies of such Bank wherever located) to or
for the credit or the account of such Credit Party against and on account of the
Obligations and liabilities of such Credit Party under this Agreement or under
any of the other Credit Documents, including, without limitation, all interests
in Obligations of such Party purchased by such Bank pursuant to Section
12.06(b), and all other claims of any nature or description arising out of or
connected with this Agreement or any other Credit Document, irrespective of
whether or not such Bank shall have made any demand hereunder and although said
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured.
12.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to Borrower, at its
address specified opposite its signature below or in any Credit Document
executed by it; if to any Bank, at its address specified opposite its signature
below; and if to the Administrative Agent, at its Notice Office; or, as to the
Borrower or the Administrative Agent, at such other address
as shall be designated by such party in a written notice to the other parties
hereto and, as to each other party, at such other address as shall be designated
by such party in a written notice to the Borrower and the Administrative Agent.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective upon receipt,
or in any event, three Business Days after being deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent shall not be effective until received
by the Administrative Agent.
12.04 Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Administrative Agent
and the Banks and their respective successors and assigns. The Borrower may not
assign or transfer any of its rights or obligations hereunder without the
written consent of the Banks. Each Bank may sell participations to any Person in
all or part of any Loan, or all or any part of its Notes or Commitments, to
another bank or other entity, in which event, without limiting the foregoing,
the provisions of Sections 1.10, 1.11, 2.06 and 4.04 shall inure to the benefit
of each purchaser of a participation and the pro rata treatment of payments, as
described in Sections 4.01 and 4.02, shall be determined as if the Bank had not
sold such participation. In the event any Bank shall sell any participation,
such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower relating to the Loans, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement other than amendments, modifications or waivers with
respect to any (i) fees payable hereunder to the Banks, (ii) the amount of
principal or the rate of interest payable on, or the dates fixed for the final
repayment of principal of the Loans and (iii) the release of the Lien on all or
substantially all of the Collateral.
(b) Each Bank may assign to one or more Banks or Eligible
Assignees all or a portion of its interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment and
the same portion of the related Loans at the time owing to it and the related
Note or Notes held by it); provided, however, that (i) other than in the case of
an assignment to an Affiliate of the assigning Bank or another Bank, each of the
Administrative Agent and the Borrower must give its prior written consent
(provided that the Borrower's consent shall not be required if a Default or
Event of Default shall have occurred and be occurring), which consent will not
be unreasonably withheld, (ii) in the event such assignment is not made to an
Affiliate of the assigning Bank or another Bank, the aggregate amount of the
Commitment and/or Loans of the assigning Bank subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall in no event, without
the prior written consent of the Administrative Agent and the Borrower, be less
than $5,000,000 or such lesser amount representing the entire remaining
Commitment of such assigning Bank, and, (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register (as defined below), an Assignment and
Acceptance in the form of Exhibit F hereto (each, an "Assignment and
Acceptance") with blanks appropriately completed, together with any Note or
Notes subject to such assignment and a
processing and recordation fee of $3,000 and, provided further, that no such
transfer or assignment by a Specified Bank will be effective until recorded by
the Administrative Agent on the Register pursuant to Section 12.04(d) hereof.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereby and
(B) the Bank thereunder shall, to the extent provided in such assignment, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such Bank
assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or to in
connection with the Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (ii) such Bank assignor makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 6.07 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such Bank
assignor or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all the obligations that by the terms of
this Agreement are required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain at its Notice
Office a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Banks and the Commitments
of, and principal amount of the Loans owing to, each Bank from time to time (the
"Register"). The entries in the Register shall be conclusive in the absence of
manifest error and the Borrower, the Administrative Agent and the Banks may
treat each person the name of which is recorded in the Register as a Bank
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice. With respect
to any Specified Bank, the Administrative Agent shall maintain the Register,
solely for purposes of this Section 12.04(d), as an agent of the Borrower. The
transfer of the Commitments and Loans of any Specified Bank and the rights to
the principal of, and interest on, any Loans or any Loans made pursuant to such
Commitments shall not be effective until such transfer is recorded in the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of an assignment or transfer by a Specified
Bank of all or part of its Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Acceptance pursuant to Section 12.04(b). Coincident with the delivery by a
Specified Bank of such Assignment and Acceptance to the Administrative Agent for
acceptance and registration of an assignment or transfer of all or part of a
Loan, or as soon thereafter as practicable, the assigning or transferor
Specified Bank shall surrender the Registered Note evidencing such Loan, and
thereupon one or more new Registered Notes in the same aggregate principal
amount shall be issued to the assigning or transferor Specified Bank and/or the
new Bank. The Administrative Agent shall indemnify and defend the Borrower for
and against any and all actions, claims, costs and damages which arise from or
out of the agency relationship established by this Section 12.04(d) other than
any actions, claims, costs and damages which result primarily from the gross
negligence or willful misconduct of the Borrower. Subject to Section 11.02,
neither the Administrative Agent nor the Borrower shall be liable in any respect
to the Banks in connection with the maintenance of the transfer and registration
system pursuant to this Section 12.04(d).
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and the assignee thereunder together with any Note or Notes
subject to such assignment, the written consent to such assignment and the Fee
payable in respect thereto, the Administrative Agent shall, if such Assignment
and Acceptance has been completed with blanks appropriately filled, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrower. Within five
Business Days after receipt of notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Notes new Notes to the order of such assignee in accordance with the provisions
of Section 1.05 hereof and, if the assigning Bank has retained Commitments
and/or Loans hereunder, new Notes to the order of the assigning Bank in an
amount equal to the Commitments and/or Loans retained by it hereunder. Such new
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
the respective Note. Thereafter, such surrendered Notes shall be marked canceled
and returned to the Borrower. Each new Bank that is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) and that could
become completely exempt from withholding of any tax, assessment or other charge
or levy imposed by or on behalf of the United States of America or any taxing
authority thereof in respect of payment of Obligations due to such Bank if the
Obligations were in registered form for U.S. Federal income tax purposes may
request the Borrower (through the Administrative
Agent), and the Borrower thereby agrees, upon such Bank's satisfaction of the
requirements of Sections 4.04(b), to record such Obligations in the Register and
exchange any Notes evidencing such Obligations for Notes in registered form
("Registered Notes") for U.S. Federal income tax purposes (which form shall be
in substantially the form of Exhibit B, as the case may be, except that such
Registered Notes shall be made payable to such Bank or its registered assigns).
Registered Notes shall be deemed to be and shall be Notes for all purposes of
the Credit Agreement and the other Credit Documents. Any Bank that makes a
request pursuant to the second immediately preceding sentence and receives
Registered Notes in exchange for its Notes, together with any subsequent
transferee or assignee of such Bank, is hereinafter called a "Specified Bank."
Registered Notes may not be exchanged for Notes that are not in registered form.
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
12.04, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower, provided that prior to any such disclosure, each
such assignee or participant or proposed assignee or participant shall have
executed a confidentiality letter containing substantially the terms of Section
12.16 with respect to the preservation of the confidentiality of any
confidential information relating to the Borrower and its Subsidiaries received
from such Bank.
12.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Bank or any holder of a Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between any Credit Party and the
Administrative Agent or any Bank or the holder of any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent or any Bank or the holder of any Note would otherwise have. No notice to
or demand on any Credit Party in any case shall entitle such Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent, the Banks or the
holder of any Note to any other or further action in any circumstances without
notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees
that promptly after its receipt of each payment from or on behalf of any Credit
Party in respect of any Obligations of such Credit Party hereunder or under any
Credit Document, it shall distribute such payment to the Banks pro rata based
upon their respective shares, if any, of the Obligations with respect to which
such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit
Documents, or otherwise), which is applicable to the payment of the principal
of, or interest on, the Loans, Unpaid Drawings or Commitment Commission, of a
sum which with respect to the related sum or sums received by other Banks is in
a greater proportion than the total of such Obligation then owed and due to such
Bank bears to the total of such Obligation then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such excess payment
shall purchase for cash without recourse or warranty from the other Banks an
interest in the Obligations of such Credit Party to such Banks in such amount as
shall result in a proportional participation by all the Banks in such amount;
provided that if all or any portion of such excess amount is thereafter
recovered from such Bank, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with generally accepted accounting policies and principles
consistently applied throughout the periods involved (except as set forth in the
notes thereto). The Projections have been made and prepared in accordance with
the same accounting policies and principles as the financial statements
delivered pursuant to Section 6.07(a). All calculations and computations
determining compliance with Sections 4.02 and 8 shall utilize accounting
principles and policies in conformity with those used to prepare the financial
statements referred to in Section 6.07(a).
(b) All computations of interest, Commitment Commission and
Fees hereunder shall be made on the actual number of days elapsed over a period
of 360 days. All interest shall accrue from the date funds are made available to
the Borrower to, but not including, the date of repayment thereof or of the end
of an Interest Period therefor; provided that if any Loan is repaid on the same
day on which it is borrowed hereunder, one day's interest shall be paid on such
Loan.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (a)
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF
THE BORROWER HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, the
Borrower hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
Borrower hereby irrevocably designates, appoints and empowers CT Corporation
System, with offices on the date hereof at 1633 Broadway, New York, New York as
its designee, appointee and agent to receive, accept and acknowledge for and on
its behalf, and in respect of its property, service of any and all legal
process, summons, notices and documents which may be served in any such action
or proceeding. The Administrative Agent agrees to use reasonable good faith
efforts to mail, by registered or certified mail, to the Borrower, at its
address set forth opposite its signature below, copies of any correspondence
mailed or delivered to CT Corporation System in connection with the immediately
preceding sentence; provided that no
failure of the Borrower to receive, for any reason, copies of such
correspondence shall in any way affect the effectiveness of the delivery of any
legal process, summons, notice or documents delivered to the Borrower's agent
for service of process. If for any reason such designee, appointee and agent
shall cease to be available to act as such, the Borrower agrees to designate a
new designee, appointee and agent in New York City on the terms and for the
purposes of this provision satisfactory to the Administrative Agent. The
Borrower further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the Borrower
at its address set forth opposite its signature below, such service to become
effective thirty days after such mailing. Nothing herein shall affect the right
of the Administrative Agent, any Bank or the holder of any Note to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement or
any other Credit Document brought in the courts referred to in clause (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court, any such action or proceeding brought in any such court has been
brought in an inconvenient forum. The Borrower further waives any right it may
have to trial by jury in any court or jurisdiction, including, without
limitation, the jurisdictions and courts referred to in clause (a) above.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on
the date (the "Third Restatement Effective Date") on which (i) the Borrower, the
Administrative Agent, the Documentation Agent and each of the Continuing Banks
and the New Banks shall have signed a copy hereof (whether the same or different
copies) and shall have delivered the same to the Administrative Agent at the
Payment Office of the Administrative Agent or, in the case of the Banks, shall
have given to the Administrative Agent telephonic (confirmed in writing),
written telex or facsimile transmission notice (actually received) at such
office that the same has been signed and mailed to it and (ii) the conditions
set forth in Section 5.01 have been satisfied.
12.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
12.12 Amendment or Waiver. Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Required Banks; provided, however,
that no such change, waiver, discharge or termination shall, without the consent
of each Bank affected thereby (i) extend the final maturity of any Loan or Note,
or reduce the rate or extend the time of payment of interest or Fees thereon, or
increase the Commitments of any Bank over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Commitment shall not constitute a change in the
terms of any Commitment of any Bank), (ii) release all or substantially all of
the Collateral or the Guaranties except, in each case as shall be otherwise
provided herein or in any other Credit Document, (iii) amend, modify or waive
any provision of this Section, (iv) reduce the percentage specified in the
definition of Required Banks or (v) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement.
Notwithstanding anything to the contrary contained herein, the modifications
contemplated by 12.04 (to the extent needed to make new Banks party to this
Agreement) shall in each case be permitted in accordance with the terms thereof.
12.13 Obligation to Make Payments in Dollars. The obligation
of the Borrower to make payment in Dollars of the principal of and interest on
the Notes and any other amounts due hereunder or under any other Credit Document
to the Payment Office of the Administrative Agent as provided in Section 4.03
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment, which is expressed in or converted into any currency other than
Dollars, except to the extent such tender or recovery shall result in the actual
receipt by the Administrative Agent at its Payment Office on behalf of the Banks
or holders of the Notes of the full amount of Dollars expressed to be payable in
respect of the principal of and interest on the Notes and all other amounts due
hereunder or under any other Credit Document. The obligation of the Borrower to
make payments in Dollars as aforesaid shall be enforceable as an alternative or
additional cause of action for the purpose of recovery in Dollars of the amount,
if any, by which such actual receipt shall fall short of the full amount of
Dollars expressed to be payable in respect of the principal of and interest on
the Notes and any other amounts due under any other Credit Document, and shall
not be affected by judgment being obtained for any other sums due under this
Agreement or under any other Credit Document.
12.14 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 11.06 and 12.01 shall
survive the execution and delivery of this Agreement and the Notes and the
making and repayment of the Loans.
12.15 Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any branch, office, Subsidiary or Affiliate
of such Bank, provided that the Borrower shall not be responsible for costs
arising under Section 1.10, 1.11, 2.06 or 4.04 resulting from any such transfer
to the extent not otherwise applicable to such Bank prior to such transfer.
12.16 Confidentiality. Subject to Section 12.04 the Banks
shall hold all Non-Public Information obtained pursuant to the requirements of
this Agreement 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 disclosure reasonably required by
any bona fide assignee or participant in connection with the contemplated
transfer of any Loans or participation therein or 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 Bank shall notify the Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Bank by such governmental agency)
for disclosure of any such Non-Public Information prior to disclosure of such
information, and provided further that in no event shall any Bank be obligated
or required to return any materials furnished by the Borrower or any Subsidiary.
"Non-Public Information" shall mean information other than (i) information which
is publicly available or becomes publicly available other than as a result of a
breach by the relevant Bank of its obligations under this Section 12.16, (ii)
information which becomes available to a Bank from a source other than the
Borrower or its representatives and not in contravention of any other
confidentiality obligations of which such Bank has actual knowledge or (iii)
information which was available to the relevant Bank on a non-confidential basis
prior to its disclosure by the Borrower to such Bank.
12.17 Amendment and Restatement. Upon the effectiveness of
this Agreement, the parties hereto agree that the Prior Credit Agreement is
amended and restated in its entirety upon the terms and conditions set forth
herein and shall be of no further force or effect. Nothing in this Agreement
shall constitute a novation of any of the Obligations evidenced or governed by
the Prior Credit Agreement.
12.18 Conversion of Original Loans of Continuing Banks.
Notwithstanding anything to the contrary contained in the Prior Credit
Agreement, this Agreement or any other Credit Document, the Borrower and each of
the Banks hereby agree that on the Third Restatement Effective Date, (i) each
Bank with a Commitment as set forth on Schedule I (after giving effect to the
Third Restatement Effective Date) shall make or maintain (including by way of
conversion) that principal amount of Loans to the Borrower as is required by
Section 1.01, provided that if the Original Loans of any Continuing Bank
outstanding on the Third Restatement Effective Date (immediately before giving
effect thereto) exceed the aggregate principal amount of Loans required to be
made available by such Bank on such date (after giving effect to the Third
Restatement Effective Date), then Original Loans of such Continuing Bank in an
amount equal to such excess shall be repaid on the Third Restatement Effective
Date, together with interest thereon, to such Continuing Bank
IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized officers to execute and deliver this Third Amended and Restated
Credit Agreement as of the date first above written.
The Interlake Corporation THE INTERLAKE CORPORATION
550 Warrenville Road
Lisle, IL 60532-4387
Attention: Chief Financial Officer
By: /s/ Stephen Gregory
Name: Stephen Gregory
Title: Vice President - Finance
and Chief Financial Officer
BANKS
The Chase Manhattan Bank THE CHASE MANHATTAN BANK,
One Chase Manhattan Plaza Individually and as Administrative
8th Floor Agent
New York, NY 10081
Attention: Ann Bowles
By: /s/ Lenard Weiner
with a copy to: Name: Leonard Weiner
Title: Managing Director
Chase Securities Inc.
10 South LaSalle Street
Chicago, Illinois 60603
Attention: Jon Hinard
The First National Bank of THE FIRST NATIONAL BANK OF
Chicago CHICAGO,
One First National Plaza Individually and as Documentation
Suite 0088-14th Floor Agent
Chicago, IL 60670-0088
Attention: Karen F. Kizer
By: /s/ Ron Edwards
Name: Ron Edwards
Title: Vice President
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA
600 Peachtree Street
Suite 2700
Atlanta, GA 30308
Attention: Claude Ashby By: /s/ F.C.H. Ashby
Name: F.C.H. Ashby
Title: Senior Manager Loan
Operations
National Bank of Canada NATIONAL BANK OF CANADA,
225 West Washington Street, Suite 1100 Individually and as Issuing Bank
Chicago, IL 60606
Attention: C.F. (Boot) Martin, Jr.
Jonathan M. Millard By: /s/ Jonathan M. Millard
Name: Jonathan M. Millard
Notice address of Issuing Bank: Title: Assistant Vice President
National Bank of Canada By: /s/ Charles F. Martin, Jr.
125 West 55th Street Name: Charles F. Martin, Jr.
----------------
New York, NY 10019 Title:Vice President and Manager
------------------------
Attention: Tom Masciale
Fax: 212-632-8590
KZH-IV Corporation KZH-IV CORPORATION
c/o Virginia R. Conway
450 West 33rd Street, 15th Floor
New York, NY 10001
Phone: 212-946-7575 By: /s/ V. Conway
Fax: 212-946-7776 Name: V. Conway
Title:
With a copy to:
Shan D. McSweeney
Gibson, Dunn & Crutcher LLP
200 Park Avenue, Suite 4723
New York, NY 10166
SCHEDULE I
to
Credit Agreement
COMMITMENTS
Bank
The Chase Manhattan Bank $17,500,000
The First National Bank of Chicago $17,500,000
The Bank of Nova Scotia $17,500,000
National Bank of Canada $17,500,000
Stanfield Capital Partners $ 5,000,000
------------
Total Commitment $ 75,000,000