AMENDED AND RESTATED
CREDIT AGREEMENT
- Among -
GIBRALTAR STEEL CORPORATION
and
GIBRALTAR STEEL CORPORATION OF NEW YORK
- And -
THE CHASE MANHATTAN BANK
as Administrative Agent
- And -
THE BANKS LISTED ON SCHEDULE 1
DATED: As of September 15, 1997
TABLE OF CONTENTS
ARTICLE I. Definitions 1
1.1 Definitions 1
ARTICLE II. The Credit 8
2.1 Revolving Credit 8
2.2 Letters of Credit 11
2.3 [Intentionally Omitted] 13
2.4 Interest 13
2.5 Prepayment 15
2.6 Use of Proceeds and Letters of Credit 15
2.7 Special Provisions Governing LIBOR
Loans - Increased Costs 16
2.8 Required Termination and Repayment
of LIBOR Loans 17
2.9 Taxes 18
2.10 Unused Line Fee 18
2.11 Reduction 18
2.12 Administrative Agent's Fee 18
2.13 Payments 19
2.14 Sharing of Payments 19
ARTICLE III. Conditions to the Extension of Credit 20
3.1 Conditions to Extension of Credit 20
3.1.a. Corporate Action 20
3.1.b. Corporate Documents 21
3.1.c. Revolving Note 21
3.1.d. Guaranty 21
3.1.e. [Intentionally omitted] 21
3.1.f. [Intentionally omitted] 21
3.1.g. Subsidiary Action 21
3.1.h. Opinion 21
3.1.i. Certificates 22
3.1.j. Other Matters 22
3.2 Conditions to Subsequent Extensions
of Credit 22
ARTICLE IV. Representations and Warranties 22
4.1 Good Standing and Authority 22
4.2 Valid and Binding Obligation 23
4.3 Good Title 23
4.4 No Pending Litigation 23
4.5 No Consent or Filing 23
4.6 No Violations 23
4.7 Financial Statements 24
4.8 Tax Returns 24
4.9 Federal Regulations 24
4.10 ERISA Matters 25
4.11 Subsidiaries 25
4.12 Compliance 25
4.13 Fiscal Year 26
4.14 Default 26
4.15 Indebtedness for Borrowed Money 26
4.16 Securities 26
4.17 26
4.18 Environmental Matters 26
ARTICLE V. Affirmative Covenants 27
5.1 Payments 27
5.2 Future Financial Statements 28
5.3 Books and Records 28
5.4 Corporate Standing 29
5.5 Discharge of Obligations 29
5.6 Insurance 29
5.7 Examinations 29
5.8 Litigation 30
5.9 Judgments 30
5.10 Fair Labor Standards Act 30
5.11 Notice 30
5.12 Environmental Compliance 30
ARTICLE VI. Negative Covenants 31
6.1 Business Operations 31
6.2 Borrowed Money 31
6.3 Guaranties 31
6.4 Liens 32
6.5 Accumulated Funding Deficiency 32
6.6 Compliance with Law 32
6.7 Expansions, Mergers, Acquisitions
and Joint Ventures 32
6.8 Loans and Advances 33
6.9 Subsidiaries 33
6.10 Dividends 33
6.11 Voting Stock 33
6.12 Sale of Assets 33
6.13 Lease Rentals 33
6.14 33
6.15 Interest Coverage Ratio 33
6.16 Net Worth 34
6.17 Funded Debt/EBITDA. 34
6.18 Current Ratio 34
ARTICLE VII. Default 34
7.1 Events of Default 34
7.2 Effects of an Event of Default 37
ARTICLE VIII. Relationship of Chase and the Administrative
Agent and the Banks 38
8.1 Appointment and Authorization 38
8.2 No Other Duties 39
8.3 Copies and Notice of Event of Default
or Default 39
8.4 Certain Rights of Chase and the
Administrative Agent 39
8.5 Waiver of Liability of Administrative
Agent 41
8.6 Non-Reliance on Administrative Agent
and Other Banks 42
8.7 Indemnification 43
8.8 Administrative Agent in Its Individual
Capacity 43
8.9 Successor Administrative Agent 43
8.10 Benefit of Article VIII 44
ARTICLE IX. Indemnification - Costs and Expenses 44
9.1 Indemnification 44
9.2 Expenses 45
ARTICLE X. Miscellaneous 45
10.1 Amendments and Waivers 45
10.2 Delays and Omissions 46
10.3 Participations and Assignments 46
10.4 Successors and Assigns 46
10.5 Notices 46
10.6 Governing Law 47
10.7 Counterparts 47
10.8 Titles 47
10.9 Inconsistent Provisions 48
10.10 JURY TRIAL WAIVER 48
10.11 CONSENT TO JURISDICTION 48
EXHIBIT A - Compliance Certificate - Financial Covenants
EXHIBIT B - Compliance Certificate - General
EXHIBIT C - Revolving Note
Schedule 1 List of Banks
Schedule 2 Employee Benefit Plans
Schedule 3.1.d Subsidiaries Required to Execute Guaranties
Schedule 4.11 Subsidiaries
Schedule 4.15/6.2 Permitted Borrowing
Schedule 4.18 Environmental Matters
Schedule 6.4 Permitted Encumbrances
Schedule 6.8 Permitted Loans and Investments
AGREEMENT, dated as of September 15, 1997 among GIBRALTAR
STEEL CORPORATION, a Delaware corporation ("Company"); GIBRALTAR STEEL
CORPORATION OF NEW YORK, a New York corporation ("Borrower"); the
financial institutions listed on Schedule 1 hereto as amended from
time to time (collectively, "Banks", and individually, "Bank"); and
THE CHASE MANHATTAN BANK, as Administrative Agent for the Banks.
WITNESSETH
ARTICLE I. Definitions
1.1 Definitions. As used in this Agreement, unless
otherwise specified, the following terms shall have the following
respective meanings:
"Administrative Agent" - The Chase Manhattan Bank in its
capacity as administrative agent or such other bank as shall have
subsequently been appointed as successor to Administrative Agent
pursuant to Section 8.9.
"Administrative Agent's Office" - The office of the
Administrative Agent at 2300 Main Place Tower, Buffalo, New York
14202, or such other office of the Administrative Agent as it shall
specify by a notice in writing to the Borrower, the Company and the
Banks.
"Advance", or collectively, "Advances" - "Advance", or
collectively "Advances", as defined in Section 2.1(a) of this
Agreement.
"Affiliate" - Any (a) Person who now or hereafter has
Control of or is now or hereafter under common Control with, the
Company or any Subsidiary or over whom or over which the Company or
any Subsidiary now or hereafter has Control, (b) any Person who is now
or hereafter related by blood, by adoption or by marriage to any such
Person or now or hereafter resides in the same home as any Person
referred to in clause (a) of this sentence, (c) any Person who is now
or hereafter an officer of the Company or of any Subsidiary or (d) any
Person who is now or hereafter related by blood, by adoption or by
marriage to any Person referred to in clause (c) of this sentence or
now or hereafter resides in the same home as any such Person or over
whom or over which any such Person now or hereafter has Control.
"Bank" and "Banks" - "Bank" and "Banks" as defined in the
preamble of this Agreement.
"Base Rate" - The higher of (i) the Federal Funds Rate, plus
1/2 of 1%, or (ii) the Prime Rate.
"Base Rate Loan" - That portion of Advances from time to
time unpaid evidenced by the Revolving Note and bearing interest at
the Base Rate as specified in Section 2.4.
"Borrower" - "Borrower" as defined in the preamble of this
Agreement.
"Business Day" - (a) For all purposes other than as covered
by clause (b) below, any day excluding Saturday, Sunday and any day on
which national banks in New York City are authorized by law or other
governmental action to close and (b) with respect to all notices and
determinations in connection with LIBOR, any date which is a Business
Day described in clause (a) and which is also a day for trading by and
between banks in U.S. dollar deposits in the London interbank market.
"Capital Expenditure" - The dollar amount of gross
expenditures (including obligations under capital leases) made for
fixed assets, real property, plant and equipment, and all renewals,
improvements and replacements thereto (but not repairs thereof)
incurred for any period.
"Cash Flow" - For any period, the sum of (i) Earnings Before
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Interest and Taxes, plus (ii) depreciation and amortization expenses
and all other non-cash charges which were deducted in determining
Earnings Before Interest and Taxes.
"Chase" - The Chase Manhattan Bank.
"Code" - The Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" - "Commitment" as defined in Section 2.1(a) of
this Agreement.
"Commonly Controlled Entity" - An entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 414(b) or (c) of the Code.
"Company" - "Company" as defined in the preamble of this
Agreement.
"Compliance Certificate - Financial Covenants" - A
certificate from the President or an appropriate financial officer of
the Borrower and the Company or from the independent certified public
accountants for the Borrower and the Company, as the case may be, in
the form of Exhibit A setting forth the computations, ratios and
calculations evidencing compliance with Article VI of this Agreement.
"Compliance Certificate - General" - A certificate from the
President or an appropriate financial officer of the Borrower and the
Company in the form of Exhibit B annexed hereto certifying that
(i) the Borrower, the Company and its Subsidiaries have complied with
and are in compliance with all the terms, covenants and conditions of
this Agreement which are binding upon them; (ii) there exists no
Default nor Event of Default as defined in this Agreement, or if this
is not the case, that one or more specified Defaults or Events of
Default have occurred, together with a description of the action taken
or to be taken by the Borrower and/or the Company to cure the same;
and (iii) the representations and warranties contained in this
Agreement are true with the same effect as though made on the date of
the certificate.
"Consolidated" or "Company on a Consolidated basis" - The
consolidation of the accounts of the Company and its Subsidiaries in
accordance with GAAP, including principles of consolidation,
consistent with those applied in the preparation of the Consolidated
audited financial statements.
"Control" - (i) The power to vote 5% or more of the
outstanding shares of any class of stock of a Person which is a
corporation, (ii) the beneficial ownership of 5% or more of the
outstanding shares of any class of stock of a Person which is a
corporation or (iii) the power to direct or cause the direction of the
management and policies of a Person which is not a corporation,
whether by ownership of any stock or other ownership interest, by
agreement or otherwise, in each case by or on behalf of a single
Person or group of Persons acting as a group for the purposes of
filing Form 13-D with the Securities and Exchange Commission.
"Conversion Date" - The first day of a LIBOR Period with
respect to any LIBOR Loan.
"Credit" - All extensions of credit set forth in Article II
of this Agreement, whether in the form of Advances, Swingloans or
Letters of Credit.
"Credit Pricing Agreement" - The Amended Agreement dated as
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of September 15, 1997, among the Company, the Borrower, the Banks and
the Administrative Agent setting forth the pricing with respect to the
Revolving Credit as such agreement may be amended, replaced or
restated from time to time.
"Current Assets" - All assets treated as current assets in
accordance with GAAP, excluding, however, from the determination of
current assets: prepaid expenses, assets located outside the United
States and loans to Subsidiaries and Affiliates.
"Current Liabilities" - Those liabilities classified as
current in accordance with GAAP with adequate provisions for all
accrued liabilities, including, without limitation, all federal and
state taxes, except those taxes classified as deferred in accordance
with GAAP.
"Default" - Any event or occurrence which with the giving of
notice or passage of time or both constitutes an Event of Default.
"Earnings before Interest and Taxes" - For any period, the
income of an entity for such period prior to the deduction of any
provisions for income taxes, reserves (including reserves for deferred
income taxes) and interest payable on Indebtedness, determined in
accordance with GAAP.
"Environment" - Any water or water vapor; any land including
land surface or subsurface, air, fish, wildlife, biota and all other
natural resources.
"Environmental Laws" - All federal, state and local
environmental, land use, zoning, health, chemical use, safety and
sanitation laws, statutes, ordinances and codes relating to the
protection of the Environment and/or governing the use, storage,
treatment, generation, transportation, processing, handling,
production or disposal of Hazardous Substances and the rules,
regulations, policies, guidelines, interpretations, decisions, orders
and directives of federal, state and local governmental agencies and
authorities with respect thereto.
"Environmental Permits" - All permits, licenses, approvals,
authorizations, consents or registrations required by any applicable
Environmental Law in connection with ownership, lease, purchase,
transfer, closure, use and/or operation of any property for the
storage, treatment, generation, transportation, processing, handling,
production or disposal of Hazardous Substances or the sale, transfer
or conveyance of any such property.
"ERISA" - The Employee Retirement Income Security Act of
1974, as amended from time to time.
"Event of Default" - An "Event of Default" as defined in
Section 7.1 of this Agreement.
"Expansion" - The formation by the Company, the Borrower or
any Subsidiary of an entity which is a Subsidiary or an Affiliate.
"Federal Funds Rate" - For any period, a fluctuating
interest rate per annum 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 the 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
date on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.
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"GAAP" - As of the date of any determination, generally
accepted accounting principles as promulgated by the Financial
Accounting Standards Board and/or the American Institute of Certified
Public Accountants, consistently applied and maintained throughout the
relevant periods and from period to period.
"Guarantor Subsidiary(ies)" - "Guarantor Subsidiary(ies) as
defined in Section 3.1.d of this Agreement.
"Guaranty(ies)" - The guaranty executed and delivered by the
Company and each Subsidiary, other than the Borrower, and described in
Section 3.1.d or Section 6.9 of this Agreement.
"Hazardous Substance" - Without limitation, any flammable
explosives, radon, radioactive materials, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, petroleum and petroleum
based products, methane, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials as defined in the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, (42 U.S.C. Section 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections 1801,
et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 6901, et seq.), the Toxic Substances Control Act,
as amended, (15 U.S.C. Sections 2601, et seq.), Articles 15 and 27 of
the New York State Environmental Conservation Law or any other
applicable Environmental Law and in the regulations promulgated
thereunder.
"Indebtedness" - At a particular date, without duplication,
(a) all indebtedness of a Person for borrowed money or for the
deferred purchase price of property, whether short term or long term,
(b) the face amount of all letters of credit issued for the account of
such Person and, without duplication, all drafts drawn thereunder and
not repaid by such Person, and (c) lease obligations of such Person
which, in accordance with GAAP, should be capitalized; provided, in no
event shall Indebtedness include any guaranties or other contingent
obligations.
"Letter of Credit" - An irrevocable commercial or standby
letter of credit issued by Chase on behalf of the Banks pursuant to
this Agreement upon application by the Borrower.
"LIBOR" - The rate per annum (rounded upward, if necessary,
to the next highest 1/100 of 1%) equal to (a) the rate quoted at
approximately 11:00 a.m. (London time) by the principal London branch
of the Administrative Agent on a LIBOR Interest Determination Date for
the offering to leading banks in the London interbank market of U.S.
Dollar deposits in immediately available funds for the applicable
LIBOR Period, and in an amount equal to the applicable LIBOR Loan;
plus (b) the LIBOR Increment.
"LIBOR (Reserve Adjusted)" - Relative to any Advance to be
made, continued or maintained as, or converted into, a LIBOR Loan for
any LIBOR Period, a rate per annum (rounded upward, if necessary, to
the next highest 1/100 of 1%) determined pursuant to the following
formula:
LIBOR = LIBOR
(Reserve Adjusted) -------------------------------
1.00 - LIBOR Reserve Percentage
"LIBOR Increment" - The percentage calculated in accordance
with Section 2.4(b) of this Agreement which is utilized in determining
LIBOR.
"LIBOR Interest Determination Date" - means a Business Day
which is two (2) Business Days prior to the commencement of each LIBOR
Period during which the LIBOR (Reserve Adjusted) rate will be
applicable.
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"LIBOR Lending Office" - The office of each Bank designated
as such below its name on Schedule 1 hereto or such other office of
such Bank (as designated from time to time by notice from such Bank to
the Borrower), whether or not outside the United States, which shall
be making or maintaining LIBOR Loans of such Bank hereunder.
"LIBOR Loan" - That portion of Advances from time to time
unpaid and bearing interest at LIBOR (Reserve Adjusted) as specified
in Section 2.4.
"LIBOR Period" - means the 30, 60, 90 or 180 day period
selected by the Borrower pursuant to Section 2.4 of the Credit
Agreement on which the LIBOR (Reserve Adjusted) rate is to be quoted.
"LIBOR Reserve Percentage" - For any Bank for any LIBOR
Period, the percentage (expressed as a decimal) applicable at the time
LIBOR for such LIBOR Period is determined, under regulations issued
from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) for such Bank in respect of assets or liabilities
consisting of and including "Eurocurrency Liabilities," as defined in
Regulation D of such Board, having a term approximately equal or
comparable to such LIBOR Period.
"Lien" - Any mortgage, deed of trust, pledge, hypothecation,
assignment, security interest, lien, charge or encumbrance, or
preference, priority or other security agreement or preferential
arrangement in respect of any asset of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or
agreement to give, any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction).
"Majority Banks" - The Banks representing sixty-six percent
(66%) of the Commitments from time to time in effect.
"Multiemployer Plan" - A Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"Net Worth" - At a particular date, all amounts which would
be included under shareholders' equity on a balance sheet of an
entity, determined in accordance with GAAP.
"Note" - Any Revolving Note.
"Permitted Encumbrances" - as listed on Schedule 6.4 of this
Agreement.
"Percentage" - The percentage set forth opposite the name of
each Bank on Schedule 1 hereof.
"Person" - Any individual, corporation, partnership, joint
venture, trust, unincorporated association, government or political
subdivision or other entity, body, organization or group.
"Plan" - Any employee benefits plan which is covered by
Title IV of ERISA and in respect of which the Company, the Borrower or
a Commonly Controlled Entity is an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" - The prime commercial lending rate of interest
publicly announced by the Administrative Agent from time to time at
its head office. The Prime Rate may or may not be the most favorable
rate charged by the Administrative Agent to its customers from time to
time.
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"Rate Option" - The choice of applicable interest rates and
LIBOR Periods offered to the Borrower pursuant to Section 2.4 of this
Agreement.
"Release" - The same meaning as given to that term in the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Section 9601, et seq.), and the
regulations promulgated thereunder.
"Reportable Event" - Any event with regard to a Plan
described in Section 4043(b) of ERISA or in regulations issued
thereunder.
"Revolving Credit" - The "Revolving Credit" as defined in
Section 2.1(a) of this Agreement.
"Revolving Note" - The promissory note of Borrower in the
form of Exhibit C evidencing Borrower's promise to repay Advances
under the Revolving Credit, and any renewals, replacements or
extensions thereof.
"Subordinated Debt" - Indebtedness of the Company or any
Subsidiary which is subordinated in form and content satisfactory to
the Administrative Agent with the agreement of the Majority Banks to
any and all Indebtedness owing to any of the Banks whether arising out
of this Agreement or otherwise.
"Subsidiary" - Any corporation of which at least 50% of the
voting stock is owned by the Company directly or indirectly through
one or more Subsidiaries.
"Swingloan", or collectively, "Swingloans" - "Swingloan", or
collectively, "Swingloans", as defined in Section 2.1 (c) of this
Agreement.
"Termination Date" - The maturity date of the Credit, which
shall be September 30, 2002 and may be shortened in accordance with
Section 2.11 or 7.2 hereof.
"Total Liabilities" - At a particular date, the sum, without
duplication, of (a) all amounts which would be included as liabilities
on a balance sheet of an entity at such date, determined in accordance
with GAAP and (b) any Indebtedness of such entity.
1.2 Accounting Terms. All accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with
GAAP consistent with those applied in the preparation of the audited
Consolidated financial statements of the Company and its Subsidiaries
referred to in this Agreement. Capitalized words not otherwise
defined in this Agreement shall have the meanings set forth in the New
York Uniform Commercial Code as in effect on the date of this
Agreement.
ARTICLE II. The Credit
2.1 Revolving Credit.
(a) Advances. Subject to the terms and conditions of
this Agreement and relying upon the representations and warranties set
forth in this Agreement, and provided that there has been no material
adverse change in the financial condition of the Borrower or the
Company, each Bank, severally and for itself alone, agrees that it
will, from time to time during the period commencing on the date the
conditions specified in Section 3.1 are satisfied through the Business
Day preceding the Termination Date, make one or more Advances
("Advance" or collectively "Advances") to the Borrower equal to its
Percentage of the aggregate amount of Advances requested by Borrower
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from all Banks up to the dollar amount set forth opposite the name of
each Bank on Schedule 1 hereto (which amount, with respect to each
Bank, shall be called its "Commitment"); provided, however, no Bank
shall be required or permitted to make any Advance or participate in
any Letter of Credit if, after giving effect thereto, the aggregate
outstanding principal amount of all Advances and the aggregate face
amount of Letters of Credit issued ("Revolving Credit") would exceed
One Hundred Eighty-Five Million Dollars ($185,000,000.00) at any one
time outstanding. Subject to Section 2.5 hereof, the Advances may be
repaid and reborrowed in accordance with the provisions hereof;
provided, however, no further Advances shall be made on or after the
Termination Date, at which time the Revolving Credit must be paid in
full.
(b) Method for Borrowing Advances. If and when the
Borrower wishes the Banks to make Advances available, the Borrower
shall notify the Administrative Agent not later than 10:00 a.m. (New
York time) on the Business Day on which the Advances are to be funded.
The Borrower shall specify (i) the aggregate amount of the Advances to
be made on a designated date, which shall be at least $100,000.00 and
(ii) the proposed date on which the Advances are to be funded, which
shall be a Business Day. Upon receipt of such notice from the
Borrower, the Administrative Agent shall promptly notify each of the
Banks thereof. Each Bank shall make an amount equal to such Bank's
Percentage of the requested Advance available to the Administrative
Agent for the account of the Borrower at the Administrative Agent's
Office not later than 1:00 p.m. (New York time) on the designated date
of the Advance, in immediately available funds. As early as
practically possible, but not later than 3:00 p.m. (New York time) on
the date on which the Advance is to be made and upon fulfillment of
the conditions set forth in Article III of this Agreement, the
Administrative Agent will make the proceeds of such Advance available
to the Borrower.
Neither the Administrative Agent nor any Bank shall
incur any liability to the Borrower in acting upon any notice referred
to above or subsection 2.1(c) by telephone which the Administrative
Agent or such Bank believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of
the Borrower or for otherwise acting in good faith.
(c) Swingloans. Subject to the terms and conditions
of this Agreement, relying upon the representations and warranties set
forth in this Agreement, and so long as the aggregate outstanding
principal amount of all Advances and the aggregate face amount of
Letters of Credit issued are One Hundred Eighty-Five Million Dollars
($185,000,000.00) or less, Chase agrees to make to the Borrower one or
more Swingloans ("Swingloan" or collectively "Swingloans") as
requested by the Borrower during the period commencing on the date the
conditions specified in Section 3.1 are satisfied through the Business
Day preceding the Termination Date in an amount which will not exceed
Five Million Dollars ($5,000,000.00) at any one time outstanding. At
such time and for as long as the aggregate outstanding principal
amount of all Advances and the aggregate face amount of Letters of
Credit issued are more than One Hundred Eighty-Five Million Dollars
($185,000,000.00), the Borrower will not request, and Chase will not
make a Swingloan. The Banks other than Chase will not participate in
nor be obligated to advance Swingloans. The obligation of Chase to
make Swingloans shall automatically terminate on the date of any
reduction in the Commitments in accordance with Section 2.11 or the
cancellation of the Commitments pursuant to Section 7.2
If and when the Borrower wishes Chase to make a
Swingloan, the Borrower shall notify Chase not later than 10:00 a.m.
(New York time) on the Business Day on which the Swingloan is to be
made of the amount of the Swingloan desired, which shall be at least
$50,000.00, Chase shall determine and advise the Borrower promptly of
the per annum fixed rate option applicable to the Swingloan, which
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rate shall be the fluctuating interest rate per annum for each day on
overnight Federal funds transactions with members of the Federal
Reserve System, plus 150 basis points ("Fixed Rate"). The Borrower
shall immediately notify Chase if the Swingloan is to bear interest at
the Fixed Rate or the Prime Rate, which notice shall be irrevocable.
Each Swingloan, together with the interest accrued thereon, shall be
prepaid by the Borrower prior to the close of business on the Business
Day immediately following the Business Day on which such Swingloan is
made.
(d) The Revolving Note. The Advances made by each
Bank shall be evidenced by a note of the Borrower to each Bank with
blanks appropriately completed in the form of Exhibit C annexed hereto
and made a part hereof ("Revolving Note"). Each Swingloan made by
Chase shall be evidenced by a separate note payable to the order of
Chase.
Each Note shall be inscribed by the Bank as holder of the
Note on the reverse side thereof or any continuation thereof with the
outstanding principal balance of the Advance by such Bank, and, in the
case of Chase, with the outstanding principal balance of the
Swingloan, and any such inscription shall constitute prima facie
evidence of the accuracy of the information so recorded; provided,
however, the failure of any Bank to make any such inscription shall
not affect the Company's obligations under the Note of such Bank or
this Agreement.
2.2 Letters of Credit.
(a) Letters of Credit. Subject to the terms and
conditions of this Agreement and relying upon the representations and
warranties set forth in this Agreement, Chase upon application of the
Borrower, shall from time to time during the period commencing on the
date the conditions specified in Section 3.1 are satisfied through the
date which is two (2) Business Days preceding the Termination Date
issue Letters of Credit on behalf of the Banks for the account of the
Borrower, the Company or any Subsidiary in an aggregate face amount of
Letters of Credit outstanding at any one time not to exceed
$5,000,000.00 and each of which shall have an expiration date which
may extend after the Termination Date but shall not exceed one year
from date of issuance; provided, however, at the request of the
Borrower or the Company, as applicable, Chase may extend the maturity
date of any Letter of Credit for additional periods not exceeding one
year each; and provided further, Chase will not issue any Letter of
Credit if, after giving effect thereto, (i) the aggregate outstanding
principal amount of all Advances and the aggregate face amount of
Letters of Credit outstanding would exceed $185,000,000.00, as such
amount may be reduced by an amount designated by the Borrower pursuant
to Section 2.11 hereof, or (ii) the Percentage of any Bank of its
Commitment would be exceeded upon its purchase of an undivided
interest in such Letter of Credit as provided in Section 2.2(d)
hereof. Each Bank's Commitment shall be used by its Percentage of the
outstanding face amount of each Letter of Credit upon the issuance
thereof.
Each Letter of Credit shall (i) provide for the
payment of drafts in United States dollars, be presented for honor
thereunder by the beneficiary in accordance with the terms thereof, at
sight when accompanied by the documents described therein, and
(ii) otherwise be in form and substance satisfactory to Chase as the
issuer of the Letter of Credit. Upon the issuance of any Letter of
Credit, Chase shall deliver the original of such Letter of Credit to
the beneficiary thereof at the direction of the Borrower and advise
each Bank of the issuance. Any Bank which believes a Letter of Credit
has been issued in violation of this Section 2.2(a) shall promptly,
after discovery of the relevant facts, notify Chase in writing.
(b) Application by the Borrower for Issuance of the
Letters of Credit. The Borrower shall request Chase in writing to
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issue the Letters of Credit by delivering to Chase on or before the
date hereof, in the case of Letters of Credit to be issued on the date
hereof, or two Business Days prior to the proposed date of issuance,
in the case of all other Letters of Credit to be issued hereunder, a
Letter of Credit application in form and content satisfactory to Chase
specifying the account party and completed to the satisfaction of
Chase and such other certificates, documents and other papers and
information as Chase may reasonably request. Prior to the issuance of
a Letter of Credit, Chase shall advise each Bank of the receipt of an
application.
(c) Letter of Credit Fees. The Borrower agrees to pay
the Administrative Agent for the accounts of the Banks upon the
application by the Borrower for and the issuance by Chase of any
Letter of Credit, a fee, which fee shall be determined by Chase at the
time of issuance of a Letter of Credit.
(d) Participation in Letters of Credit. Chase
hereby sells to each Bank, and each Bank hereby purchases from Chase,
without recourse to Chase (except as to payments to be made by the
Administrative Agent to such Bank under Section 2.2(c)), an undivided
interest in each Letter of Credit and in each letter of credit fee
payable pursuant to Section 2.2(c), in each case equal to such Bank's
Percentage thereof.
Upon any drawing under a Letter of Credit drawn in
strict compliance with the requirements of the Letter of Credit as
determined by Chase in its sole discretion, for the payment of which
the Borrower has not otherwise made funds available, the
Administrative Agent shall notify each of the Banks of the date of
payment of the drawing and the dollar amount of each Bank's Percentage
interest therein. Such payment by Chase under any Letter of Credit
shall constitute Advances by the Banks subject to the terms and
conditions of this Agreement pertaining thereto other than
Section 3.2.
The obligation of each Bank to remit the amount of
its Advance to the Administrative Agent pursuant to a drawing under a
Letter of Credit in accordance with this Section shall be
unconditional and irrevocable under any and all circumstances (unless
the payment of such drawing was the result of Chase's gross negligence
or willful misconduct or such Letter of Credit was issued in violation
of Section 2.2(a) hereof) and may not be terminated, suspended or
delayed for any reason notwithstanding any other provision of this
Agreement, including the occurrence and continuance of a Default or
Event of Default.
(e) Obligation to Reimburse. Chase will promptly
notify by telephone the Borrower of any draft drawn pursuant to a
Letter of Credit and presented for payment and of the date Chase
intends to pay such draft; if that is the case. With respect to any
draft paid pursuant to a Letter of Credit, the Borrower hereby agrees
to pay to the Administrative Agent the amount of such payment on the
date of payment by depositing with the Administrative Agent prior to
10:00 a.m. (New York time) immediately available funds in the amount
of such draft. The failure to so deposit shall be deemed a request
for Advances in an aggregate amount equal to the amount paid.
(f) Unconditional Obligations. In order to induce
Chase to issue the Letters of Credit and the Banks to participate
therein, the Borrower agrees that neither Chase nor any Bank shall be
responsible or liable for, and the Borrower's unconditional obligation
to reimburse the Administrative Agent for the accounts of the Banks
for amounts paid on account of drawings honored under Letters of
Credit shall not be affected by (i) the validity, sufficiency or
genuineness of any document or instrument presented to Chase in
connection with a Letter of Credit, even if such document or
instrument should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged, or (ii) any action taken or
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omitted by Chase without gross negligence or willful misconduct in
connection with making or not making payment under the Letter of
Credit.
2.3 [Intentionally Omitted]
2.4 Interest.
(a) The Credit. The Advances under the Revolving
Credit (other than the Swingloans) shall bear interest on the unpaid
principal amount from time to time unpaid until maturity (whether by
acceleration or otherwise) at a per annum rate of interest equal to
the Base Rate ("Base Rate Loan"). The rate of interest on the Base
Rate Loans evidenced by the Revolving Note shall change simultaneously
with each change in the Prime Rate and shall change each Business Day
with any change in the Federal Funds Rate.
Subject to Section 2.7 hereof, the Borrower may elect
to convert any portion of a Base Rate Loan to a LIBOR Loan or to
continue any LIBOR Loan as a new LIBOR Loan by giving irrevocable
notice of such election to the Administrative Agent by 10:00 a.m. (New
York time) at least three (3) Business Days prior to the requested
Conversion Date and, in the case of the continuation of any LIBOR
Loan, such conversion or continuation shall take place on the last day
of the applicable LIBOR Period with respect to the LIBOR Loan being so
continued. The Administrative Agent shall promptly give each of the
Banks notice of the Borrower's election. Each such request to convert
or continue shall include the Rate Option, the requested Conversion
Date (which shall be a Business Day), the LIBOR Period selected with
respect to any LIBOR Loan, and the amount to be converted or continued
(which shall be in a principal amount of not less than $500,000.00 and
an integral multiple of $100,000.00 in the case of conversion to or
continuation as a LIBOR Loan. If no Default nor Event of Default has
occurred and is continuing at such time, such conversion or
continuation shall be made on the requested Conversion Date, subject
to the foregoing limitations in connection with the conversion or
continuation of LIBOR Loans.
The Administrative Agent shall not incur any liability
to the Borrower in acting upon telephonic notice referred to above
which the Administrative Agent believes to have been given by a duly
authorized officer or other person authorized to and on behalf of the
Borrower or for otherwise acting under this Section 2.4(a).
(b) LIBOR Increment. The LIBOR Increment, which is
the percentage utilized in determining LIBOR, shall be determined in
accordance with the Credit Pricing Agreement.
(c) Computation of Interest. Interest shall be
computed on the basis of a 360-day year for the actual number of days
elapsed, which will result in a higher effective annual rate.
Interest shall be payable on the first day of each March, June,
September and December commencing December 1, 1997 and, in the case of
a LIBOR Loan, interest shall also be payable on the last day of each
applicable LIBOR Period, if earlier, and on any Conversion Date.
(d) Default Rate. After maturity, whether by
acceleration or otherwise, Borrower shall pay interest at a per annum
rate equal to two percent (2%) plus the Prime Rate. In no event shall
the rate of interest exceed the maximum rate permitted by applicable
law. If Borrower pays interest in excess of the amount permitted by
applicable law, such excess shall be applied in reduction of the
principal of Advances made pursuant to this Agreement.
(e) Late Charge. Upon failure to make any payment of
interest or principal hereunder when due, Borrower promises to pay a
late charge computed as follows:
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(1) Late charges may be assessed each day on the
amount overdue based upon the Prime Rate from day to day. The
formulas for the daily late charge assessment will be as follows:
(i) For overdue interest:
(Amount overdue) x 110% x (the Prime Rate + 2%)
-----------------------------------------------
365
(ii) For overdue principal:
(Amount overdue) x 10% x (the Prime Rate + 2%)
----------------------------------------------
365
(2) If the sum of the late charges computed as in
(1) is less than Ten Dollars ($10.00), a minimum late charge of Ten
Dollars ($10.00) per late payment may be assessed.
The assessment and/or collection of late charges shall
in no way impair the right to pursue any other remedies hereunder.
2.5 Prepayment.
(a) Base Rate Loans. The Borrower shall have the
right to prepay at any time without premium all or any portion of the
Advances consisting of Base Rate Loans, together with interest on the
principal so prepaid to the date of such prepayment. Any partial
prepayment of principal shall be in the amount of $100,000.00 or an
integral multiple thereof.
(b) LIBOR Loans. The Borrower shall have the right to
prepay without premium all or any portion of the Advances consisting
of LIBOR Loans on the expiration day of the applicable LIBOR Period.
If any LIBOR Loan is prepaid at any other time, the Borrower shall,
upon not less than ten (10) days prior written notice, pay to the
Administrative Agent an amount equal to (i) the interest which would
have otherwise been payable on the amount prepaid during the remaining
term of the LIBOR Period, less (ii) interest on the amount prepaid for
such term computed at an interest rate equal to the yield-to-maturity
which could be obtained on United States Treasury obligations,
purchased in the market at the time of prepayment, having a remaining
term and coupon rate comparable to the remaining term of the LIBOR
Period, and comparable to the applicable interest rate, as determined
by the Administrative Agent in good faith, and certified to the
Borrower, such certificate to be conclusive, absent manifest error.
Any partial prepayment of principal shall be in the amount of
$100,000.00 or an integral multiple thereof.
2.6 Use of Proceeds and Letters of Credit.
The Borrower covenants to the Banks that it will use the proceeds
advanced under this Agreement subsequent to the initial Advance for
general working capital, for loans to and investments in its
Subsidiaries and Affiliates to the extent permitted under Section 6.8
hereof and for the financing of Capital Expenditures and Expansions,
mergers, consolidations, acquisitions of stock or assets of, or
investments in a joint venture of partnership with, any third Person
permitted by Section 6.7 hereof or otherwise consented to by the
Administrative Agent with the agreement of the Majority Banks.
2.7 Special Provisions Governing LIBOR Loans -
Increased Costs.
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(a) In the event that on any LIBOR Interest
Determination Date, any Bank shall notify the Administrative Agent
that it shall have determined (which determination shall be final,
conclusive and binding) that:
(1) by reason of conditions in the London
interbank market or of conditions affecting the position of any Bank
in such market occurring after the date hereof, adequate fair means do
not exist for establishing LIBOR, or
(2) by reason of (i) any applicable law or
governmental rule, regulation, guideline or order (or any written
interpretation thereof and including any new law or governmental rule,
regulation, guideline or order but excluding any of the foregoing
relating to taxes referred to in Section 2.9 of this Agreement) or
(ii) other circumstances affecting any Bank or the London interbank
market or the position of any Bank in such market (such as, but not
limited to, official reserve requirements), LIBOR does not represent
the effective pricing to any Bank for U.S. dollar deposits of
comparable amounts for the relevant period due to such increased costs
then, the Administrative Agent shall give a notice by telephone,
confirmed in writing, to the Borrower of such determination.
(b) Thereafter, the Borrower shall pay to the
Administrative Agent upon written request therefor, such additional
amounts as the Administrative Agent in its sole discretion, shall
reasonably determine to be required to compensate the Bank for such
increased costs. A certificate as to such additional amounts
submitted to the Borrower by the Administrative Agent shall, absent
manifest error, be final, conclusive and binding upon all parties
hereto.
(c) In lieu of paying such additional amounts as
required by this Section 2.7, the Borrower may exercise the following
options:
(1) If such determination relates only to a
conversion to a LIBOR Loan then being requested by the Borrower
pursuant to the terms hereof, the Borrower may, on such LIBOR Interest
Determination Date by giving notice by telephone to the Administrative
Agent, withdraw such request.
(2) The Borrower may, by giving notice by
telephone to the Administrative Agent require the Administrative Agent
to convert the LIBOR Loan then being requested to a Base Rate Loan, or
to convert its outstanding LIBOR Loan that is so affected into a Base
Rate Loan at the end of the then current LIBOR Period.
2.8 Required Termination and Repayment of LIBOR Loans.
(a) In the event any Bank shall notify the
Administrative Agent that it shall have reasonably determined, at any
time (which determination shall be final, conclusive and binding but
shall be made only after consultation with the Borrower and the
Administrative Agent), that the making or continuation of any or all
of LIBOR Loans by such Bank:
(1) has become unlawful by compliance
by such Bank in good faith with any applicable law,
governmental rule, regulation, guideline or order, or
(2) would cause such Bank severe
hardship as a result of a contingency occurring after
the date of this Agreement which materially and
adversely affects the London interbank market(such as,
but not limited to disruptions resulting from political
or economic events);
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then, and in either such event, the Administrative
Agent shall on such date (and in any event as soon as possible after
making such determination) give telephonic notice to the Borrower,
confirmed in writing, of such determination, identifying which of the
LIBOR Loans are so affected.
(b) The Borrower shall, upon the termination of the
then current LIBOR Period applicable to each LIBOR Loan so affected
or, if earlier, when required by law, repay each such affected LIBOR
Loan, together with all interest accrued thereon.
(c) In lieu of the repayment required by Section
2.8(b), the Borrower may exercise the following options:
(1) If the determination by the Bank relates only
to a LIBOR Loan then being converted by the Borrower pursuant to the
terms hereof, the Borrower may, on such date by giving notice by
telephone to the Administrative Agent, withdraw such request for
conversion.
(2) The Borrower may, by giving notice by
telephone to the Administrative Agent, require the Banks to convert
the LIBOR Loan then being converted to a Base Rate Loan or to convert
any outstanding LIBOR Loan or LIBOR Loans that are so affected into a
Base Rate Loan at the end of the then current LIBOR Period (or at such
earlier time as repayment is otherwise required to be made pursuant to
section 2.7(b)). Such notice shall pertain only to the LIBOR Loan or
LIBOR Loans outstanding or to be outstanding during each such affected
LIBOR Period.
2.9 Taxes. If any taxes (other than taxes with respect to
the income of the Banks), or duties of any kind shall be payable, or
ruled to be payable, by or to any taxing authority of or in the United
States, or any foreign country, or any political subdivision of any
thereof, in respect of any of the transactions contemplated by this
Agreement (including, but not limited to, execution, delivery
performance, enforcement, or payment of principal or interest of or
under the Note or this Agreement, or the making of a LIBOR Loan), by
reason of any now existing or hereafter enacted statute, rule,
regulation or other determination (excluding any taxes imposed on or
measured by the net income of the Banks), the Borrower will:
(1) pay on written request therefor all such taxes or
duties, including interest and penalty, if any,
(2) promptly furnish the Administrative Agent with
evidence of any such payment, and
(3) indemnify and hold the Banks and any holder or
holders of the Note harmless and indemnified against any liability or
liabilities with respect to or in connection with any such taxes or
the payment thereof or resulting from any delay or omission to pay
such taxes.
2.10 Unused Line Fee. The Borrower shall pay to the
Administrative Agent for the account of the Banks a per annum Unused
Line Fee (based on a 360 day year) on the average unused amount of the
Commitments, which Unused Line fee shall be payable quarterly, in
arrears, on September 30, 1997 and on the last day of each September,
December, March and June thereafter to and including the Termination
Date. The Unused Line Fee shall be computed in accordance with the
provisions of the Credit Pricing Agreement.
2.11 Reduction. The Borrower may, at any time by written
notice to the Administrative Agent state its desire to reduce the
Commitments of the Banks to any amount which is not less than the
aggregate then outstanding principal amount of Advances and the
undrawn face amount of Letters of Credit. Any such reduction shall be
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pro-rata in order that the Percentage of each Bank's Commitment is not
changed. Any reductions of the Commitments shall not be reinstated at
any future date and any partial reduction shall be in the amount of
$5,000,000.00 or an integral multiple thereof. Immediately upon
receipt of such notice by the Administrative Agent, the obligation of
each of the Banks to make Advances and to participate in Letters of
Credit hereunder shall be limited to its Commitment as reduced
pursuant to such notice.
2.12 Administrative Agent's Fee. The Borrower agrees to pay
the Administrative Agent an agent's fee in the amount set forth in a
letter from the Administrative Agent to the Company dated October 14,
1994, payable annually, by November 15, upon the satisfaction of the
conditions specified in Section 3.1 and on each annual anniversary of
such date thereafter until all of the Indebtedness created pursuant to
this Agreement has been paid in full.
2.13 Payments. All payments by the Borrower under this
Agreement of interest, principal, fees and other expenses shall be
made in immediately available funds not later than 12:00 p.m. on the
due date at the Administrative Agent's Office, unless such amount is
paid by the Administrative Agent's debiting a deposit account of the
Borrower. All such payments applicable to the Swingloans shall be
remitted by the Administrative Agent to Chase on the same Business
Day. All such other payments, other than the Administrative Agent's
fee, shall be remitted by the Administrative Agent to each of the
Banks on the same Business Day in accordance with its Percentage.
2.14 Sharing of Payments. If any Bank shall obtain any
payment or other recovery or receive any collateral (whether
voluntary, involuntary, by application of setoff or otherwise) on
account of any Advances or any participation in a Letter of Credit in
excess of its pro rata share of payments or collateral then or
therewith obtained by all Banks, such Bank shall purchase from the
other Banks such participations in Advances or Letters of Credit, or
shall provide such other Banks with the benefits of any such
collateral or the proceeds thereof as shall be necessary to cause such
purchasing Bank to share the excess payment or other recovery ratably
with each of them; provided, however, if all or any portion of such
excess payment or benefits is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price and benefits
returned to the extent of such recovery, without interest.
The Borrower agrees that each of the other Banks so
purchasing a portion of such Bank's interest in Advances or
participations in Letters of Credit may exercise all rights
(including, but not limited to, rights of setoff) with respect to such
portion purchased as if such other Banks were the direct holders
thereof. The Borrower agrees that each Bank shall have a security
interest in and the right to set off as against any outstanding
Advances and all other of the Borrower's liabilities under this
Agreement with respect to any deposit account or other obligation of
the Borrower or any Subsidiary.
Each of the Banks agree that (a) if the unpaid principal
balances of the Revolving Note are not paid in full at the close of
business on the Termination Date, or (b) if the maturity of the
Revolving Note is accelerated and the Credit is terminated in
accordance with Section 7.2 hereof (the earlier of such dates being
referred to as the "Purchase Date"), the Bank or Banks receiving
payment at a rate based on the applicable percentage(s) in excess of
similar payments received by any other Bank shall immediately give
notice to the Administrative Agent of such payment and shall purchase
for cash within thirty (30) Business Days from the Purchase Date, from
any Bank receiving payment at a lesser rate, an interest in the
Revolving Credit in such amounts so that each Bank shall own an
interest in the aggregate amount of the Revolving Credit then
outstanding equal to its Percentage, plus, if such amount is not paid
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by the purchasing Bank within the specified period, interest thereon
shall accrue at the rate equal to the Federal Funds Rate for the
period commencing on the Purchase Date and ending on the actual date
of payment thereof.
2.15 Replacement Bank. The Borrower may replace any Bank (a
"Replaced Bank") by designating another bank which is reasonably
acceptable to the Administrative Agent (such Bank being herein called
a "Replacement Bank"). Simultaneously with payment of all amounts
owing to the Replaced Bank hereunder or in connection herewith, the
Replaced Bank shall assign to the Replacement Bank in accordance with
Section 10.3 and without recourse to or warranty by, or expense to,
such Replaced Bank all of the rights and obligations of such Replaced
Bank hereunder (except for the rights as survive repayment of the
Advances). Upon such assignment such Replaced Bank shall no longer be
a party to this Agreement or have any rights hereunder and shall be
relieved from all obligations to the Borrower, the Company, the
Administrative Agent or the Banks, and the Replacement Bank shall
succeed to the rights and obligations of such Replaced Bank.
ARTICLE III. Conditions to the Extension of Credit
3.1 Conditions to Extension of Credit. The Banks'
agreement to extend the Credit and Chase's agreement to issue Letters
of Credit shall be effective only upon fulfillment of the following
conditions at the date of the execution of this Agreement:
3.1.a. Corporate Action. The Borrower and the Company
shall have taken all necessary and appropriate corporate action and
the Boards of Directors of the Borrower and the Company shall have
adopted resolutions authorizing the Credit, the execution and delivery
of this Agreement, the Revolving Note and the Guaranties executed by
the Borrower and the Company, as appropriate, and the taking of all
action required of the Borrower and the Company by this Agreement; and
the Borrower and the Company shall have furnished to the
Administrative Agent copies certified as of the date of the execution
of this Agreement of such corporate resolutions and such other
corporate documents as any Bank shall reasonably request.
3.1.b. Corporate Documents. There shall have been
furnished to the Administrative Agent (a) certificates of the Company
and each Subsidiary's good standing duly issued of recent date by an
official of the jurisdiction of its incorporation; (b) copies of the
certificate of incorporation and by-laws of the Company and each
Subsidiary, certified by their Secretaries as of the date of the
execution of this Agreement; and (c) certificates of incumbency, dated
the date of the execution of this Agreement specifying the officers of
the Company and each Subsidiary, together with their specimen
signatures.
3.1.c. Revolving Note. The Borrower shall have
executed and delivered to each of the Banks a Revolving Note,
appropriately completed, evidencing the Borrower's obligation to repay
the Revolving Credit.
3.1.d. Guaranty. The Borrower shall furnish to the
Administrative Agent, with an executed counterpart for each Bank, the
written continuing guaranty ("Guaranty") of the Company and each
Subsidiary set forth in Schedule 3.1.d attached hereto and made a part
hereof (individually, "Guarantor Subsidiary" and collectively,
"Guarantor Subsidiaries", such Guaranty to be in form and content
satisfactory to each of the Banks guaranteeing the payment of any and
all indebtedness and liabilities of the Borrower to each of the Banks,
whether now existing or hereafter incurred pursuant to this Agreement.
3.1.e. [Intentionally omitted]
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3.1.f. [Intentionally omitted]
3.1.g. Subsidiary Action. Each Guarantor Subsidiary
other than the Borrower (a) shall have taken all necessary and
appropriate corporate action and the Boards of Directors of each
Guarantor Subsidiary shall have adopted resolutions authorizing the
execution and delivery of the Guaranties executed by it and the taking
of all action called for thereby, and (b) shall have furnished to the
Administrative Agent copies, certified as of the date of the execution
of this Agreement, of such corporate action and such other corporate
documents as any of the Banks shall reasonably request.
3.1.h. Opinion. Independent Counsel for the Company
and its Subsidiaries, Lippes, Silverstein, Mathias & Wexler, LLP,
shall have furnished to the Administrative Agent, with a signed copy
for each Bank, its favorable opinion, in form and content satisfactory
to each of the Banks and their counsels, dated the date of the
execution of this Agreement, as to the matters referred to in
Sections 4.1, 4.2, 4.4, 4.5 and 4.6 of this Agreement.
3.1.i. Certificates. The Company shall have caused to
be delivered to the Administrative Agent a Compliance Certificate
appropriately completed and insurance certificates, binders or
policies evidencing compliance with Section 5.6.
3.1.j. Other Matters. All matters incidental to the
execution and delivery of this Agreement, the Revolving Note and the
Guaranties, and all action required on the part of the Borrower, the
Company and each Subsidiary by this Agreement, shall be satisfactory
to each of the Banks and their counsels.
3.2 Conditions to Subsequent Extensions of Credit.
Subsequent to the satisfaction of the conditions set forth in
Section 3.1, each request to the Administrative Agent for an Advance
or to Chase for a Letter of Credit shall constitute confirmation by
the Borrower and the Company of all the matters set forth in the form
of the Compliance Certificate - General in the form of Exhibit B as of
the date of the Advance or the Letter of Credit in the same manner as
if a written Compliance Certificate had been delivered, and the
statements made shall be true on the date of such extension of credit.
No Advance shall be made nor Letters of Credit issued if such
certification is not made or if the Administrative Agent has received
written notice from any Bank that it believes that a Default exists.
ARTICLE IV. Representations and Warranties
Each of the Borrower and the Company makes the following
representations and warranties, which shall be deemed to be continuing
representations and warranties so long as any indebtedness of the
Borrower to any of the Banks, Chase or the Administrative Agent,
including indebtedness for fees and expenses, shall remain unpaid, any
Letter of Credit shall remain outstanding or the Commitments shall
remain in effect:
4.1 Good Standing and Authority. Each of the Borrower, the
Company and each of the Subsidiaries is a corporation, duly organized,
validly existing, and in good standing under the laws of the state of
its incorporation; has powers and authority to transact the business
in which it is engaged; is duly licensed or qualified and in good
standing in each jurisdiction in which the conduct of such business
requires such licensing or such qualification, which singly or in the
aggregate is material to the operations of the Company on a
Consolidated basis; and has all necessary power and authority to
enter, as appropriate, this Agreement and to execute, deliver and
perform this Agreement, the Revolving Note, the Guaranties and any
other document executed in connection with this Agreement, all of
which have been duly authorized by all proper and necessary corporate
and shareholder action.
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4.2 Valid and Binding Obligation. This Agreement, the
Revolving Note, the Guaranties and any other document executed in
connection herewith have been duly executed and delivered by the
Borrower, the Company and each of the Guarantor Subsidiaries and
constitutes the legal, valid and binding obligations of the Borrower,
the Company and each Guarantor Subsidiary, as the case may be,
enforceable against the Borrower, the Company or such Guarantor
Subsidiary, as the case may be, in accordance with their respective
terms.
4.3 Good Title. Each of the Borrower, the Company and each
of the Guarantor Subsidiaries has good and marketable title or a valid
leasehold interest to all of its assets, none of which is subject to
any Lien except Permitted Encumbrances.
4.4 No Pending Litigation. There are not any actions,
suits, proceedings (whether or not purportedly on behalf of the
Borrower, the Company or any Subsidiary) or investigations pending or,
to the knowledge of the Borrower or the Company, threatened against
the Borrower, the Company or any Subsidiary or any basis therefor,
which, if adversely determined, would, in any case or in the
aggregate, materially adversely affect the property, assets, financial
condition or business of the Company on a Consolidated basis or
materially impair the right or ability of the Borrower, the Company or
any Subsidiary to carry on its operations substantially as now
conducted or anticipated to be conducted in the future, or which
question the validity of this Agreement, the Revolving Note, the
Guaranties or other documents required by this Agreement, or any
action taken or to be taken pursuant to any of the foregoing.
4.5 No Consent or Filing. No consent, license, approval or
authorization of, or registration, declaration or filing with, any
court, governmental body or authority or other Person is required on
the part of the Borrower, the Company or any Subsidiary in connection
with the valid execution, delivery or performance of this Agreement,
the Revolving Note, the Guaranties or other documents required by this
Agreement or in connection with any of the transactions contemplated
thereby.
4.6 No Violations. Neither the Borrower, the Company nor
any Subsidiary is in violation of any term of its certificate of
incorporation or by-laws, or of any mortgage, borrowing agreement or
other instrument or agreement pertaining to Indebtedness for borrowed
money which might reasonably be expected to result in a material and
adverse effect, singly or in the aggregate to the Company on a
Consolidated basis, upon its business or assets. Neither the
Borrower, the Company nor any Subsidiary is in violation of any term
of any other indenture, instrument, or agreement to which it is a
party or by which it may be bound, resulting, or which might
reasonably be expected to result, in a material and adverse effect,
singly or in the aggregate to the Company on a Consolidated basis,
upon its business or assets. Neither the Borrower, the Company nor
any Subsidiary is in violation of any order, writ, judgment, injunction
or decree of any court of competent jurisdiction or of any
statute, rule or regulation of any competent governmental authority
which might reasonably be expected to result in a material and adverse
effect upon its business or assets. The execution and delivery of
this Agreement, the Revolving Note, the Guaranties and other documents
required by this Agreement and the performance of all of the same is
and will be in compliance with the foregoing and will not result in
any violation or result in the creation of any Lien upon any
properties or assets. There exists no fact or circumstance not
disclosed in this Agreement, in the documents furnished in connection
herewith or the Company's filings under the Securities Exchange Act of
1934, which materially adversely affects or in the future (so far as
the Borrower or the Company can now foresee) may materially adversely
affect the condition, business or operations of the Company on a
Consolidated basis, except those facts and circumstances which
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generally affect all Persons engaged in the Borrower's or the
Company's lines of business.
4.7 Financial Statements. The Company has made available
to each Bank audited financial statements of the Company on a
Consolidated basis showing its financial condition as of December 31,
1995 and December 31, 1996 and its cash flows for the fiscal year then
ended. All financial statements have been prepared in accordance with
GAAP consistently applied throughout the intervals involved. Since
the date of the last such financial statements to the date of
execution hereof, there have not been any material adverse changes in
the financial condition of the Company from that disclosed in such
financial statements, except as disclosed in the Company's interim
financial statement as of and for the period ended June 30, 1997.
None of the property or assets shown in the financial statements
delivered to the Banks has been materially adversely affected as the
result of any fire, explosion, accident, flood, drought, storm,
earthquake, condemnation, requisition, statutory or regulatory change,
act of God, or act of public enemy or other casualty, whether or not
insured.
4.8 Tax Returns. The Borrower and the Company have duly
filed all federal and other tax returns required to be filed for
themselves and all Subsidiaries and have duly paid all taxes required
by such returns.
4.9 Federal Regulations. Neither the Borrower, the Company
nor any Guarantor Subsidiary is engaged principally, or as one of its
important activities, in the business of extending or arranging for
the extension of credit for the purpose of purchasing or carrying
"margin stock" (as defined in Regulations G and U issued by the Board
of Governors of the Federal Reserve System). Likewise, neither the
Borrower, the Company nor any Guarantor Subsidiary owns nor intends to
carry or purchase any such "margin stock", and the Borrower will not
use the proceeds of any Advance to purchase or carry (or refinance any
borrowing the proceeds of which were used to purchase or carry) any
such "margin stock". Neither the Borrower, the Company nor any
Guarantor Subsidiary is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, or a "holding
company," or a "subsidiary company" 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.
4.10 ERISA Matters. No Plan has been terminated or
partially terminated or is insolvent or in reorganization, nor have
any proceedings been instituted to terminate or reorganize any Plan;
neither the Borrower, the Company nor any Subsidiary has withdrawn
from any Plan in a complete or partial withdrawal, nor has a condition
occurred which if continued would result in a complete or partial
withdrawal; neither the Borrower, the Company nor any Subsidiary has
incurred any withdrawal liability, including contingent withdrawal
liability, to any Plan pursuant to Title IV of ERISA; neither the
Borrower, the Company nor any Subsidiary has incurred any liability to
the Pension Benefit Guaranty Corporation other than for required
insurance premiums which have been paid when due; no Reportable Event
has occurred and is continuing; and no Plan or other "employee pension
benefit plan" as defined in Section 3(2) of ERISA to which the
Borrower, the Company or any Subsidiary is a party has an "accumulated
funding deficiency" (whether or not waived) as defined in Section 302
of ERISA or in Section 412 of the Code. Each Plan and each other
"employee benefit plan" as defined in Section 3(3) of ERISA to which
the Borrower, the Company or any Subsidiary is a party is in
substantial compliance with ERISA, and no such plan, nor any
administrator, trustee or fiduciary thereof, to the best knowledge of
the Borrower and the Company, has engaged in a prohibited transaction
described in Section 406 of ERISA or in Section 4975 of the Code.
4.11 Subsidiaries. The Borrower and the Company have no
Subsidiaries except as listed in Schedule 4.11 of this Agreement.
-18-
4.12 Compliance. The present conduct of the business and
operations of the Borrower, the Company and each Guarantor Subsidiary
and the present ownership and use of each asset of the Borrower, the
Company and each Subsidiary are in compliance in all material respects
with each applicable statute, regulation and other law (including, but
not limited to, the Environmental Protection Act, the Occupational
Health and Safety Act, the Comprehensive Environmental Response,
Compensation and Liability Act and the Resource Conservation and
Recovery Act), except where non-compliance would not result in a
material adverse effect, singly or in the aggregate to the Company on
a Consolidated basis, upon its business or assets. Each
authorization, approval, permit, consent, franchise and license from,
each registration and filing with, each declaration, report and notice
to, and each other act by or relating to, any Person necessary for the
present or anticipated conduct of the business or operations of, or
for the present or anticipated ownership or use of any asset, material
singly or in the aggregate to the Company on a Consolidated basis has
been duly obtained, made, given or done, and is in full force and
effect.
4.13 Fiscal Year. The fiscal year of the Borrower and the
Company is the year ending December 31.
4.14 Default. There does not exist any Default or Event of
Default.
4.15 Indebtedness for Borrowed Money. The Borrower, the
Company and each of the Guarantor Subsidiaries have no Indebtedness
arising from the borrowing of any money, except for Indebtedness
committed or outstanding on the date of this Agreement pursuant to any
lease, loan or credit facility fully and accurately described in
Schedule 4.15 to this Agreement.
4.16 Securities. Each outstanding share of stock,
debenture, bond, note and other security of the Borrower, the Company
and each Subsidiary has been validly issued in full compliance with
each statute, regulation and other law, and, if a share of stock, is
fully paid and nonassessable.
4.17 [Intentionally omitted].
4.18 Environmental Matters.
(a) No above ground or underground storage tanks
containing Hazardous Substances are located on any property owned,
leased or operated by the Company or any Subsidiary, except for
storage tanks containing diesel fuel, gasoline or waste oil, which
tanks are in compliance with all applicable Environmental Laws. No
above ground or underground storage tanks containing Hazardous
Substances have been located on any such property except for tanks
which were removed in compliance with applicable Environmental Laws.
(b) No property owned, leased or operated by the
Company or any Subsidiary is or has been used for the storage,
treatment, generation, transportation, processing, handling,
production or disposal of any Hazardous Substance or as a landfill or
other waste disposal site or for military, manufacturing or industrial
purposes or for the storage of petroleum or petroleum based products,
in violation of any law, except as disclosed on Schedule 4.18.
(c) To the knowledge of the Borrower and/or the
Company, no Release of a Hazardous Substance, which would be in
violation of any law is occurring or is threatened on, at, from or
near any property owned, leased or operated by the Company or any
Subsidiary, which through soil, subsoil, bedrock, surface water or
groundwater migration is located on the property owned, leased or
operated by the Company or any Subsidiary, except as disclosed on
Schedule 4.18.
-19-
(d) Neither the Company nor any Subsidiary is subject
to any existing, pending or, to the knowledge of the Company or
Borrower, threatened suit, claim, notice of violation or request for
information under any of the Environmental Laws, except as disclosed
on Schedule 4.18.
(e) The Company and each Subsidiary are in compliance
with all Environmental Laws to the effect that any violation would not
have a material adverse effect upon the business or operations of the
Company on a Consolidated basis.
(f) All Environmental Permits have been obtained or
applied for and are in full force and effect.
(g) There are no agreements, consent orders, decrees,
judgments, license or permit conditions or other orders or directives
of any federal, state or local court, governmental agency or authority
relating to the past, present or future ownership, use, operation,
sale, transfer or conveyance of any property owned, leased or operated
by the Company or any Subsidiary which require any change in condition
or any work, repairs, construction, containment, clean up,
investigation, study, removal or other remedial action or capital
expenditures.
ARTICLE V. Affirmative Covenants
During the term of this Agreement, and so long thereafter as
any indebtedness of the Borrower to any of the Banks, Chase or the
Administrative Agent, including any indebtedness for fees and
expenses, shall remain unpaid, any Letter of Credit shall remain
outstanding or the Commitments shall remain in effect, the Borrower
and the Company, unless written consent of the Administrative Agent is
obtained, will:
5.1 Payments. Cause the Borrower to punctually pay or
cause to be paid the principal of and interest on all Indebtedness and
all fees incurred by it pursuant to this Agreement in the manner set
forth in this Agreement.
5.2 Future Financial Statements. Furnish to each of the
Banks (a) within ninety (90) days after and as at the close of each
fiscal year, a Consolidated balance sheet and Consolidated statements
of operations and earnings and changes in financial position of the
Company and all Subsidiaries (including, without limitation, the
Borrower), each examined and reported upon by an independent certified
public accounting firm reasonably satisfactory to the Banks, and
prepared in accordance with GAAP, which report shall not contain any
qualification or disclaimer of opinion by reason of audit limitations
imposed by Borrower or Company, together with Compliance Certificates
in the forms of Exhibits A and B certified by an appropriate financial
officer of the Borrower and the Company; (b) promptly, after
preparation, copies of all such proxy statements, financial statements
and reports which the Company sends to its stockholders, and copies of
all regular, periodic and special reports, as well as all registration
statements, which the Company files with the Securities and Exchange
Commission, including, but not limited to, Forms 10-K and 10-Q; (c)
promptly after the filing thereof with the Pension Benefit Guaranty
Corporation, a copy of each annual report filed with respect to each
Plan; (d) within forty-five (45) days after and as at the close of
each of its fiscal quarters of each year, a Consolidated and
consolidating balance sheet and related Consolidated and consolidating
statement of operations and earnings and changes in financial position
of the Company and all Subsidiaries (including, without limitation,
the Borrower) for the previous fiscal quarter and from the beginning
-20-
of the fiscal year to the end of such fiscal quarter, except
consolidating financial statements shall only be required as of and
for the period ending at the close of a fiscal year, together with
comparisons to the previous year, if appropriate, and to budget
projections, prepared by the Company internally in accordance with
GAAP, and certified by an appropriate financial officer of Borrower
and Company, together with a Compliance Certificate - Financial
Covenants in the form of Exhibit A; (e) any and all information
regarding Borrower's and the Company's business, condition or
operations, financial or otherwise, which is furnished to any other
creditor, upon the request of the Banks; and (f) such additional
information, books, records, reports or statements as the
Administrative Agent or any of the Banks may from time to time
reasonably request regarding the financial and business affairs of the
Borrower, the Company and each Subsidiary, all prepared in form and
detail satisfactory to the Banks.
5.3 Books and Records. Maintain true and complete records
and books in accordance with generally accepted accounting principles
consistently applied including, without limiting the generality of the
foregoing, appropriate reserves for possible losses and liabilities
and notify each Bank promptly in writing of any proposed change in the
location at which such books and records are maintained.
5.4 Corporate Standing. Maintain, and cause each
Subsidiary to maintain, its corporate existence in good standing
except any Subsidiary may merge into or consolidate with the Company
or any other Subsidiary so long as such Subsidiary has executed and
delivered a Guaranty in favor of the Administrative Agent for the
benefit of the Banks (to the extent required by Section 3.1.d), and
remain or become duly licensed or qualified and in good standing in
each jurisdiction in which the conduct of its business requires such
qualification or licensing.
5.5 Discharge of Obligations. Cause to be paid and
discharged all obligations when due and all lawful taxes, assessments
and governmental charges or levies imposed upon the Borrower, the
Company or any Subsidiary, or upon any property, real, personal or
mixed, belonging to the Borrower, the Company or any Subsidiary, or
upon any part thereof, before the same shall become in default, as
well as all lawful claims for labor, materials and supplies which, if
unpaid, might become a lien or charge upon the property or any part of
it. Notwithstanding the previous sentence, neither the Borrower, the
Company nor any Subsidiary shall be required to cause to be paid and
discharged any obligation, tax, assessment, charge, levy or claim so
long as its validity is contested in the normal course of business and
in good faith by appropriate and timely proceedings and the Borrower,
the Company or any Subsidiary, as the case may be, sets aside on its
books adequate reserves with respect to each tax, assessment, charge,
levy or claim so contested, nor shall the Borrower, the Company nor
any Subsidiary be required to pay or discharge any trade liability
which is not past its stated due date by more than thirty (30) days.
5.6 Insurance. (a) Keep, and cause each Subsidiary to
keep, all its property so insurable insured at all times with
responsible insurance carriers satisfactory to each of the Banks
against fire, theft and other risks in coverage, form and amount
satisfactory to each of the Banks; (b) keep, and cause each Subsidiary
to keep, adequately insured at all times in reasonable amounts with
responsible insurance carriers against liability on account of damage
to persons or property and under all applicable worker's compensation
laws; (c) promptly deliver to the Administrative Agent certificates of
insurance or any of those insurance policies required to be carried
pursuant hereto, with appropriate endorsements designating the
Administrative Agent for the benefit of the Banks as their interests
may appear as a named insured or loss payee as requested by the
Administrative Agent; and (d) cause each such insurance policy to
contain a thirty (30) day notice of cancellation or material change in
-21-
coverage provision satisfactory to the Administrative Agent.
5.7 Examinations. Permit the Banks or their agents at all
reasonable times to visit and inspect any and all properties of
Borrower, Company or any Guarantor Subsidiary and to examine and make
extracts from or copies of any of Borrower's, Company's or its
Guarantor Subsidiary's books, ledgers, reports, correspondence and
other records, and discuss their affairs, finances and accounts with
officers of Borrower, Company and each Guarantor Subsidiary.
5.8 Litigation. Promptly notify each of the Banks in
writing as soon as the Borrower or Company has knowledge thereof, of
the institution or filing of any litigation, action, suit, claim,
counterclaim, or administrative proceeding against, or investigation
of, the Borrower, the Company or any Subsidiary to which the Borrower,
the Company or any Subsidiary is a party by or before any regulatory
body or governmental agency (a) the outcome of which involves more
than $2,000,000.00 singularly or cumulatively, except for litigation
in which the contingent liability is fully covered by insurance, or
(b) which questions the validity of this Agreement, the Revolving
Note, any of the Guaranties or any action taken or to be taken
pursuant to any of the foregoing; and furnish or cause to be furnished
to any Bank such information regarding the same as such Bank may
request.
5.9 Judgments. Promptly notify each of the Banks in
writing as soon as the Company or Borrower has knowledge thereof, of
any judgment, order or award of any court, agency or other
governmental agency or any arbitrator, (a) the outcome of which may
materially and adversely affect the finances or operations of the
Borrower, the Company or any Subsidiary or the Company's or Borrower's
ability to fulfill its obligations hereunder or which involves more
than $1,000,000.00 unless adequately covered by insurance, or
(b) renders invalid this Agreement, the Revolving Note, any of the
Guaranties or any action taken or to be taken pursuant to any of the
foregoing, and furnish or cause to be furnished to any Bank such
information regarding the same as such Bank may request.
5.10 Fair Labor Standards Act. Comply with, and cause each
Subsidiary to comply with, the provisions of the Fair Labor Standards
Act of 1938, as amended.
5.11 Notice. Promptly notify the Administrative Agent in
writing with full details of any Default or Event of Default, or which
might materially and adversely affect the financial condition or
operations of the Borrower, the Company or any Guarantor Subsidiary.
5.12 Environmental Compliance.
(a) Comply with all Environmental Laws.
(b) Not cause or permit any change to be made in the
present or intended use of any property owned, leased or operated by
the Company or any Subsidiary which would (i) involve the storage,
treatment, generation, transportation, processing, handling,
production or disposal of any Hazardous Substance or the use of any
such property as a landfill or other waste disposal site or for the
storage of petroleum or petroleum based products (except in compliance
with applicable Environmental Laws), (ii) violate any applicable
Environmental Laws, or (iii) constitute non-compliance with any
Environmental Permit.
(c) Deliver promptly to each of the Banks (i) copies
of any documents received from the United States Environmental
Protection Agency or any state, county or municipal environmental or
health agency concerning the Company's operations except documents of
-22-
general applicability; and (ii) copies of any documents submitted by
the Company to the United States Environmental Protection Agency or
any state, county or municipal environmental or health agency
concerning its operations, except submissions in the ordinary course
of business.
ARTICLE VI. Negative Covenants
During the term of this Agreement and so long thereafter as
any of the Indebtedness of the Borrower to any of the Banks, Chase or
the Administrative Agent, including any Indebtedness for fees and
expenses, shall remain unpaid, any Letter of Credit shall remain
outstanding or the Commitments shall remain in effect, neither the
Borrower, the Company nor any of the Guarantor Subsidiaries, without
prior written consent of the Administrative Agent, will:
6.1 Business Operations. Make or permit to be made any
material change in the character of its business or operations.
6.2 Borrowed Money. Create, incur or suffer to exist or
assume any Indebtedness for money borrowed, directly or indirectly,
other than (i) Subordinated Debt; and (ii) existing Indebtedness and
existing accommodations for Indebtedness as set forth on Schedule
4.15/6.2 attached hereto.
6.3 Guaranties. Guarantee, endorse or otherwise be or
become liable or contingently liable in connection with the
obligations or Indebtedness of any other Person, including any
Subsidiary, directly or indirectly, except (i) as an endorser of
instruments for the payment of money deposited to its bank account for
collection in the ordinary course of business; and (ii) the Company
and the Borrower may guaranty IRB obligations of Gibraltar Steel of
Tennessee in the original principal amount of $8,000,000.00, and (iii)
in addition to the guaranty permitted in accordance with clause (ii),
the Company and/or the Borrower may guaranty obligations of any
Subsidiary to Third Persons not to exceed $4,000,000.00 in the
aggregate at any time.
6.4 Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets, income or profits, whether now
owned or hereafter acquired, or pledge or encumber any assets, except
(i) in favor of the Administrative Agent for the benefit of the Banks;
and (ii) in favor of any Bank or other third Person as listed in
Schedule 6.4. Borrower has not, and so long as this Agreement is in
effect, will not, enter into any covenant or agreement with any other
person or entity that prohibits the granting or existence of a lien in
the personal or real property of Borrower in favor of the
Administrative Agent, as administrative agent and for the benefit of
the Banks.
6.5 Accumulated Funding Deficiency. Incur (i) any
accumulated funding deficiency within the meaning of ERISA equal to
five (5) percent or more of Consolidated Tangible Net Worth; or (ii)
any liability of comparable size to the Pension Benefit Guaranty
Corporation.
6.6 Compliance with Law. Violate any law or regulation,
order, writ, injunction or decree of any court or governmental
instrumentality or breach any agreement to which Borrower, Company or
any Subsidiary is subject or in default thereunder, which violation or
breach would have a material adverse effect on the Company on a
Consolidated basis.
6.7 Expansions, Mergers, Acquisitions and Joint Ventures.
Enter into any Expansion, or merge into or consolidate with, exchange
or acquire the stock or assets of, or enter into any joint venture or
partnership with, any third Person, except (i) any Subsidiary may
merge into or consolidate with the Company or any other Subsidiary so
-23-
long as such other Subsidiary has executed and delivered a Guaranty in
favor of the Administrative Agent for the benefit of the Banks to the
extent required by Section 3.1.d; and (ii) the Company or any
Subsidiary may enter into an Expansion, may merge or consolidate with,
acquire the stock or assets of, or enter into a joint venture or
partnership with, any third Person if (a) the Company and the Borrower
are surviving corporations, (b) immediately thereafter and after
giving effect thereto, no Default or Event of Default exists, and (c)
the investments in such Expansions, joint ventures, partnerships and
the book value of the assets of the third Person being merged or
consolidated, together with the purchase price of the stock or assets
being acquired, do not exceed $40,000,000.00 in the aggregate from the
date of this Agreement and for the entire period this Credit is
outstanding, and (d) the third Person with which the Company, the
Borrower or such Subsidiary mergers, or which the Company, the
Borrower or any Subsidiary acquires, is in a business of a character
already performed by the Company, the Borrower or such Subsidiary, as
applicable, or of a type reasonably related thereto.
6.8 Loans and Advances. Make any loans or advances to any
Person, except (i) trade credit extended in the ordinary course of
business; (ii) advances made in the usual course of business to
officers and employees for travel and other out-of-pocket expenses
incurred by them on behalf of Borrower, the Company or any
Subsidiaries in connection with their business; (iii) the Borrower and
the Company may advance amounts from time to time to each other or to
any Subsidiary, for working capital purposes in the ordinary course of
business and for other purposes permitted under the other provisions
of this Agreement which would not be in violation of any of the terms
or provisions of this Agreement and (iv) advances to Persons not in
excess of $1,000,000.00 in the aggregate at any one time outstanding.
6.9 Subsidiaries. In the case of Borrower, organize or
cause to exist any Subsidiaries (other than those Subsidiaries listed
on Schedule 4.1), unless, upon the request of the Banks, such
corporation executes a guaranty in the form of the Guaranty executed
by each Guarantor Subsidiary pursuant to Section 3.1.d.
6.10 Dividends. In the case of Company, upon the occurrence
of and during the existence of a Default or an Event of Default,
declare or pay dividends or make any capital distributions.
6.11 Voting Stock. In the case of Company, sell, convey,
transfer, assign, pledge or otherwise encumber any of the voting stock
of Borrower or any other Subsidiary to any Person.
6.12 Sale of Assets. Convey, sell, transfer, lease or sell
and lease back all or a substantial portion of its property, assets,
or business to any other Person, except for sales of Inventory in the
ordinary course of business. For purposes of this Section 6.12,
"substantial portion" shall mean any and all purchases or transfer
prices in excess of five (5%) percent of the Company's Tangible Net
Worth on a Consolidated basis in the aggregate in any one fiscal year,
and any transaction shall be permissible only if no Default shall
occur as a result of the transaction.
6.13 Lease Rentals. Pay, in the case of the Company on a
Consolidated basis, rentals under any operating or true lease in
excess of $5,000,000.00 in the aggregate during any fiscal year.
6.14 [Intentionally omitted]
6.15 Interest Coverage Ratio. Permit, in the case of the
Company on a Consolidated basis, the ratio of Earnings before Taxes
and Interest plus depreciation and amortization minus Capital
Expenditures (excluding Capital Expenditures made in connection with
-24-
permitted acquisitions) to interest payable on Total Liabilities,
calculated on an annual rolling basis of four fiscal quarters, to be
less than 3.0 to 1.0 as of the last day of any fiscal quarter.
6.16 Net Worth. Permit, in the case of the Company on a
Consolidated basis, the Net Worth (a) as of the last day of any fiscal
quarter to be less than $120,000,000 plus 50% of Cumulative Net Income
(as defined below). Cumulative Net Income means net income of the
Company on a Consolidated basis from June 30, 1997 through the end of
the fiscal quarter for which the calculation of Net Worth is being
made.
6.17 Funded Debt/EBITDA. Permit, in the case of the Company
on a Consolidated basis, the ratio of Funded Debt (as defined below)
to Earnings before Interest and Taxes plus depreciation and
amortization as of the last day of any fiscal quarter, calculated on
an annual rolling basis of four fiscal quarters, to be greater than
3.0 to 1.0 as of any fiscal quarter end.
"Funded Debt" means debt for money borrowed which is bearing interest.
For the purposes of calculating this covenant, upon the consummation
of a permitted acquisition, the 12 month historical Earnings before
Interest and Taxes plus depreciation and amortization of the acquired
entity shall be included in the calculation of the ratio, subject to
the Banks' review and approval, in their discretion, of such acquired
entity's financial information."
6.18 Current Ratio. Permit at any time, in the case of the
Company on a Consolidated basis, the ratio of Current Assets to
Current Liabilities to be less than 2.0 to 1.0.
ARTICLE VII. Default
7.1 Events of Default. The occurrence of any one or more
of the following events shall constitute an event of default
(individually, "Event of Default," or, collectively, "Events of
Default"):
(a) Nonpayment. Nonpayment after the same becomes due
whether by acceleration or otherwise of principal of or interest on
the Revolving Note or of any fee or premium provided for hereunder.
(b) Negative Covenants. Default in the observance of
any of the covenants or agreements of the Borrower or the Company
contained in Article VI.
(c) Other Covenants. Default in the observance of any
of the covenants or agreements of the Borrower or the Company
contained in this Agreement, other than those specified in Article VI
or Section 7.1(b) hereof, which is not remedied within twenty (20)
days after notice thereof by the Administrative Agent to the Borrower
and the Company.
(d) Voluntary Insolvency Proceedings. If the Company
or any Subsidiary (i) shall file a petition or request for
liquidation, reorganization, arrangement, adjudication as a bankrupt,
relief as a debtor or other relief under the bankruptcy, insolvency or
similar laws of the United States of America or any state or territory
thereof or any foreign jurisdiction, now or hereafter in effect;
(ii) shall make a general assignment for the benefit of creditors;
(iii) shall consent to the appointment of a receiver or trustee for
the Company or any Subsidiary or any of the Company's or any
Subsidiary's assets, including, without limitation, the appointment of
or taking possession by a "custodian" as defined in the federal
Bankruptcy Code; (iv) shall make any, or send notice of any intended,
bulk sale; or (v) shall execute a consent to any other type of
insolvency proceeding (under the federal Bankruptcy Code or otherwise)
-25-
or any formal or informal proceeding for the dissolution or
liquidation of, or settlement of claims against or winding up of
affairs of, the Company or any Subsidiary.
(e) Involuntary Insolvency Proceedings. The
appointment of a receiver, trustee, custodian or officer performing
similar functions for the Company or any Subsidiary or any of the
Company's or any Subsidiary's assets, including, without limitation,
the appointment of or taking possession by a "custodian" as defined in
the federal Bankruptcy Code; or the filing against the Company or any
Subsidiary of a request or petition for liquidation, reorganization,
arrangement, adjudication as a bankrupt or other relief under the
bankruptcy, insolvency or similar laws of the United States of America
or any state or territory thereof or any foreign jurisdiction, now or
hereafter in effect; or the institution against the Company or any
Subsidiary of any other type of insolvency proceeding (under the
federal Bankruptcy Code or otherwise) or of any formal or informal
proceeding for the dissolution or liquidation of, settlement of claims
against or winding up of affairs of the Company or any Subsidiary, and
the failure to have such appointment vacated or such filing, petition
or proceeding dismissed within ninety (90) days after such
appointment, filing or institution.
(f) Representations. If any certificate, statement,
representation, warranty or financial statement furnished by or on
behalf of the Company or any Subsidiary pursuant to or in connection
with this Agreement (including, without limitation, representations
and warranties contained herein and in the Guaranties) or as an
inducement to the Banks to enter into this Agreement or any other
lending agreement with the Borrower, the Company or its other
Subsidiaries shall prove to have been false in any material respect at
the time as of which the facts therein set forth were represented, or
to have omitted any substantial contingent or unliquidated liability
or claim against the Company or any Subsidiary required to be stated
therein, or if on the date of the execution of this Agreement there
shall have been any materially adverse change in any of the facts
disclosed by any such statement or certificate, which change shall not
have been disclosed by the Company or the Borrower to all of the Banks
at or prior to the time of such execution.
(g) Other Indebtedness and Agreements. Nonpayment by
the Borrower, the Company or any other Subsidiary of any Indebtedness
(other than as evidenced by the Revolving Note) owing by the Borrower,
the Company or any other Subsidiary when due (or, if permitted by the
terms of the applicable document, within any applicable grace period),
whether such Indebtedness shall become due by scheduled maturity, by
required prepayment, by acceleration, by demand or otherwise, or
failure to perform any term, covenant or agreement on its part to be
performed under any agreement or instrument (other than this Agreement
and the Guaranties) evidencing or securing or relating to any
Indebtedness owing by the Borrower, the Company or any other
Subsidiary when required to be performed if the effect of such failure
is to accelerate or to permit the holder to accelerate the maturity of
such Indebtedness.
(h) Judgments. If any judgment or judgments in excess
of $500,000.00 (other than any judgment for which it is fully insured)
against the Borrower, the Company or any other Subsidiary remains
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for
a period of thirty (30) days after entry thereof.
(i) Pension Default.
i. The Company or any of its Subsidiaries (or
any officer or director thereof) shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan,
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ii. any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), shall exist with respect to any
Plan,
iii. with respect to any Multiemployer Plan, the
Company or any Commonly Controlled Entity fails to make a contribution
required to be made thereto, or withdraws therefrom, where in either
event the liability of the Company or such Commonly Controlled Entity
is in excess of $250,000.00,
iv. a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Plan
which is not a Multiemployer Plan, which Reportable Event or
institution of proceedings is, in the reasonable opinion of any Bank,
likely to result in the termination of such Plan for purposes of Title
IV of ERISA and, in the case of a Reportable Event, the continuance of
such Reportable Event unremedied for ten (10) days after notice of
such Reportable Event pursuant to Section 4043(a), (c) or (d) of ERISA
is given or the continuance of such proceedings for ten (10) days
after commencement thereof, as the case may be,
v. any Plan shall terminate for purposes of
Title IV of ERISA, or
vi. any other similar event or condition shall
exist which, together with all other events or conditions in clauses
i. through vi. above, if any, would subject the Company or any of its
Subsidiaries to any tax, penalty or other liabilities under ERISA in
the aggregate material in relation to the business, operations,
property or financial or other condition of the Company and its
Subsidiaries taken as a whole.
(j) Guaranty. The occurrence of an event of default
or breach of any term, covenant or provision of any Guaranty.
(k) Change of Control. Any Person or related Persons
(other than members of the Kenneth Lipke family, their heirs or
estates or trusts for the benefit of members of the Kenneth Lipke
family) shall own 55% or more of outstanding capital stock of the
Company or a sufficient number of the shares of the outstanding
capital stock of the Company to elect a majority of the Company's
board of directors.
7.2 Effects of an Event of Default.
(a) Upon the happening of one or more Events of
Default (except a default with respect to the Borrower under either
Section 7.1(d) or 7.1(e) hereof), the Administrative Agent, shall upon
the written direction of the Majority Banks and by notice to the
Borrower declare the principal of the Revolving Note then outstanding
to be immediately due and payable, together with all interest thereon
and fees and expenses accruing under this Agreement and/or declare the
Commitments of the Banks to be canceled. Upon any acceleration of the
principal of the Revolving Note, the then outstanding balance shall
become immediately due and payable without presentation, demand or
further notice of any kind to the Borrower. Upon any cancellation of
the Commitments set forth in this Agreement, any obligations the Banks
may have to make Advances or to issue Letters of Credit shall be
immediately canceled.
(b) Upon the happening of one or more Events of
Default under Section 7.1(d) or 7.1(e) hereof with respect to the
Borrower, the Commitments shall be canceled immediately, automatically
and without notice, and the Revolving Note then outstanding shall
become immediately due and payable without presentation, demand or
notice of any kind to the Borrower.
(c) Upon the happening of any Event of Default, the
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Administrative Agent shall then exercise such rights and remedies
specified under this Agreement, the Revolving Note and the Guaranties
or under applicable law which it, but only with the written consent of
the Majority Banks, deems appropriate under the circumstances in order
to enforce such documents.
(d) Upon the happening of any Event of Default, the
Administrative Agent may, and upon the request of the Majority Banks
shall, require the Borrower to provide to the Administrative Agent for
the benefit of the Banks cash collateral in an amount equal to face
amount of issued and unexpired Letters of Credit available for
drawings.
(e) Upon the happening of any Event of Default, the
principal balances of any Swingloans shall be repaid by the making of
an Advance by the Banks in an amount equal to the unpaid principal
balances of the Swingloans, except in the case of the occurrence of an
Event of Default under subsection 7.1(d) or 7.1(e) after which each of
the Banks other than Chase shall purchase a participating interest in
the unpaid principal balances of the Swingloans equal to its
Percentage.
ARTICLE VIII. Relationship of Chase and the
Administrative Agent and the Banks
8.1 Appointment and Authorization. Each Bank hereby
appoints The Chase Manhattan Bank as the Administrative Agent to act
as Administrative Agent in connection with the administration of the
Credit and the Guaranties and for such purpose, subject to specific
restrictions herein including Sections 7.2 and 8.3, irrevocably
authorizes the Administrative Agent to take such action and to
exercise such rights, powers and discretions as are specifically
delegated to the Administrative Agent in this Agreement and the
Guaranties, together with all rights, powers and discretions as are
reasonably incidental thereto, including, without limitation, the
power to execute financing or similar statements or notices and other
related documents relating to the transactions contemplated by the
Guaranties. The Administrative Agent may perform any of its functions
and duties under this Agreement or the Guaranties for the benefit of
all the Banks by or through any agents or any of its directors,
officers or employees. In performing any of its functions and duties
under this Agreement or the Guaranties, the Administrative Agent shall
not be deemed to be acting as a trustee for, or partner of, any Bank
or to have assumed any relationship of agency, trust or partnership
with or for the Borrower. In administering the Letters of Credit,
Chase will use the same degree of care and skill as it exercises in
the administration of letters of credit in which no participations are
sold, but it shall not be under any liability to any Bank except for
its own gross negligence or willful misconduct and except as stated in
Section 2.2(d). Chase agrees that it will honor each drawing under a
Letter of Credit in strict compliance with the requirements of the
Letter of Credit under which it is drawn.
8.2 No Other Duties. Neither Chase nor the Administrative
Agent shall have any duties or obligations other than those expressly
provided for in this Agreement and the Guaranties, and neither Chase,
the Administrative Agent, nor any of their directors, officers,
employees or agents, shall be liable for any action taken or omitted
to be taken in connection with this Agreement, the Guaranties, and
other documents related thereto, the negotiation, preparation or
execution thereof, or in connection with the syndication,
implementation or administration of the Credit, the Guaranties, unless
directly resulting from Chase's, the Administrative Agent's, or such
directors', officers', employees' or agents' gross negligence or
willful misconduct. The duties of the Administrative Agent shall be
mechanical and administrative in nature; the Administrative Agent
shall be responsible to all the Banks for the filing and refiling of
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statements to perfect and to continue the perfection of the Security
Interests; the Administrative Agent shall not, by reason of this
Agreement or the Guaranties, have a fiduciary relationship in respect
of any Bank; and nothing in this Agreement or the Guaranties,
expressed or implied, is intended or shall be construed to impose upon
Chase or the Administrative Agent any obligations in respect of this
Agreement or any document in connection herewith or the Guaranties
except as expressly set forth herein in such documents and this
Agreement.
8.3 Copies and Notice of Event of Default or Default. The
Administrative Agent shall (i) promptly forward to each Bank a copy of
any notice or document received by the Administrative Agent from the
Borrower pursuant to this Agreement; (ii) promptly notify each Bank of
the occurrence of any Event of Default or Default of which the
Administrative Agent has actual knowledge; and (iii) consult with and
secure the written consent of the Majority Banks with respect to the
enforcement of this Agreement, the Revolving Note and the Guaranties.
8.4 Certain Rights of Chase and the Administrative Agent.
(a) If Chase or the Administrative Agent shall request
instructions from the Majority Banks with respect to any act or action
(including failure to act) in connection with this Agreement, the
Guaranties or any other document related thereto, Chase and the
Administrative Agent shall be entitled to refrain from such act or
taking such action unless and until it shall have received
instructions from the Majority Banks; and neither Chase nor the
Administrative Agent shall incur liability to any Person by reason of
so refraining. Chase and the Administrative Agent shall be fully
justified in failing or refusing to take any action hereunder or under
this Agreement, the Guaranties, or any document related thereto (i) if
such action would, in its opinion, be contrary to law or the terms of
this Agreement, the Guaranties, or any document related thereto,
(ii) if it shall not receive such advice or concurrence of the
Majority Banks as it deems appropriate in accordance with the terms
hereof, or (iii) if it shall not first be indemnified to its
reasonable satisfaction against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take
any such action. 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, under the Guaranties, or under any document related
thereto, in accordance with the instructions of the Majority Banks.
(b) Chase and the Administrative Agent may, without
liability to the Borrower or any Bank, (i) rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram,
telecopy, telephone notice, telex or teletype message, statement,
order or other document or conversation believed by Chase or the
Administrative Agent to be genuine and correct and to have been
signed, sent or made by the Person or Persons by whom it purports to
have been communicated or signed and (ii) employ in Administrative
Agent's sole discretion and rely on the advice and opinions received
by them from any professional adviser, including, without limitation,
legal counsel, independent accountants or other experts, whether or
not such professional adviser was selected by the Administrative
Agent, and the Borrower and each Bank hereby waives any claim or
action it may have against the Administrative Agent or Chase arising
out of or resulting from such employment or reliance, except in the
case of Chase's or the Administrative Agent's gross negligence or
willful misconduct.
(c) All moneys realized by the Administrative Agent
from any payment or other recovery from the Borrower, the Company or
any Subsidiary from any of the Guaranties or otherwise shall be
applied by the Administrative Agent against the following in following
priority: first, to costs and expenses of Chase, the Administrative
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Agent or any Bank which are reimbursable by the Borrower or otherwise
pursuant to this Agreement and the Revolving Note; second, to
interest on the Revolving Note and fees payable to the Banks and the
Administrative Agent pursuant to this Agreement; third, to the unpaid
principal balances of the Revolving Note and the outstanding
unreimbursed face amounts of any Letters of Credit; and fourth, any
remaining moneys shall be paid over to such other Person as is
entitled thereto.
8.5 Waiver of Liability of Administrative Agent. The
Administrative Agent shall not have any liability or, as the case may
be, any duty or obligation:
(a) To the Borrower or the Company on account of any
failure of any Bank other than the Administrative Agent to perform, or
the delay of any Bank other than the Administrative Agent in the
performance of, any of its respective obligations under this
Agreement, the Guaranties or any of the other documents in connection
herewith;
(b) To any Bank on account of any failure or delay in
performance by either the Borrower, the Company or any Subsidiary of
any of its obligations under this Agreement, the Guaranties or any of
the other documents in connection herewith unless such failure or
delay is a result of the Administrative Agent's gross negligence or
willful misconduct;
(c) To any Bank for (i) the accuracy of any written or
oral statements furnished or made by the Borrower, the Company or by
any Person (including the Administrative Agent) on behalf of the
Borrower or the Company in connection with the Credit, (ii) the
accuracy of any representation, warranty or statement made by the
Borrower in or pursuant to this Agreement, the Guaranties or any of
the other documents in connection herewith, or (iii) the legality,
validity, effectiveness, enforceability or sufficiency of this
Agreement, the Guaranties, any other document in connection herewith,
or any other document referred to herein;
(d) To any Bank to provide either initially or on a
continuing basis (except as expressly required by Section 8.3 and 8.6
hereof) any information with respect to the Borrower or its condition,
or for analyzing or assessing or omitting to analyze or assess the
status, creditworthiness or prospects of the Borrower, the Company or
any of its Subsidiaries;
(e) To any Bank to investigate whether or not any
Default or Event of Default has occurred (and the Administrative Agent
may assume that, until Administrative Agent shall have actual
knowledge or shall have received notice from any Bank, the Company or
the Borrower to the contrary, no such Default or Event of Default has
occurred);
(f) To any Bank to account for any sum or profit or
any property of any kind received by Administrative Agent arising out
of any present or future banking or other relationship with the
Borrower or with any other Person except the relationship established
pursuant to this Agreement or the Guaranties;
(g) To any Bank to disclose to any Person any
information relating to the Borrower, the Company or any other
Subsidiary received by Administrative Agent if, in Administrative
Agent's determination (such determination to be conclusive), such
disclosure would or might constitute a breach of any law or regulation
or be otherwise actionable by suit against Administrative Agent by the
Borrower or any other Person;
(h) Other than as expressly required by this Agreement
or as expressly agreed to by the Banks, to take any action or refrain
from taking any action; and
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(i) To commence any legal action or proceeding arising
out of or in connection with this Agreement or the Guaranties until
Administrative Agent shall have been indemnified by the Borrower or by
the Banks according to their Percentages to Administrative Agent's
satisfaction against any and all costs, claims and expenses
(including, but not limited to, attorneys' fees and expenses) in
respect of such legal action or proceeding.
8.6 Non-Reliance on Administrative Agent and Other Banks.
Each Bank expressly acknowledges that the Administrative Agent has not
made any representations or warranties to such Bank and that no act by
the Administrative Agent hereinafter taken, including any review of
the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Bank.
Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or
any other Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into
the financial condition, creditworthiness, affairs, status and nature
of the Borrower and the Company, and made its own decision to enter
into this Agreement, and each Bank hereby releases the Administrative
Agent from any and all liability to such Bank in connection with the
Administrative Agent's investigation and appraisal of the Borrower's
or the Company's financial affairs, financial condition, and
creditworthiness. Each Bank also represents that it will,
independently and without reliance upon the Administrative Agent or
any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action
under this Agreement or the Guaranties and to make such investigation
as it deems necessary to inform itself as to the status and affairs,
financial or otherwise, of the Borrower and the Company. The
Administrative Agent shall not be required to keep itself informed as
to the performance or observance by the Borrower and the Company of
this Agreement, the Guaranties or any other document referred to or
provided for herein or to inspect the properties or books of the
Borrower, the Company or any of its other Subsidiaries. Except for
notices, reports, and other documents and information expressly
required to be furnished to each of the Banks by the Administrative
Agent under this Agreement or the Guaranties, the Administrative Agent
shall have no duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial
condition or business of the Borrower, the Company or any of its other
Subsidiaries which may come into the possession of the Administrative
Agent.
8.7 Indemnification. Each Bank agrees to indemnify Chase,
in its capacity as issuer of Letters of Credit and the Administrative
Agent in its capacity as such (to the extent not reimbursed by the
Borrower or the Company), as well as its directors, officers,
employees or agents, ratably according to its respective Percentage
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without
limitation, those expenses specified in Article IX hereof which may at
any time (including, without limitation, at any time following the
payment of the Revolving Note) be imposed on, incurred by or asserted
against Chase or the Administrative Agent, its directors, officers,
employees or agents, in any way relating to or arising out of this
Agreement or the Guaranties or any action taken or omitted by the
Administrative Agent, its directors, officers, employees or agents,
under or in connection with any of the foregoing; provided, however,
that no Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent that
they result from the Administrative Agent's or Chase's gross
negligence or willful misconduct. The agreements in this Section 8.7
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shall survive the payment of the Revolving Note, the expiration or
other termination of the Letters of Credit and the termination of this
Agreement and the Guaranties.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent in its individual capacity and its affiliates may
make loans to, accept deposits from and generally engage in any kind
of business with the Borrower, the Company and any of its other
Subsidiaries as though the Administrative Agent were not the
Administrative Agent hereunder.
8.9 Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to all
the Banks, the Borrower, and the Company. Upon any such resignation,
Fleet Bank shall have the right to become the successor Administrative
Agent. If, however, within ten (10) days upon receiving notice of the
Administrative Agent's resignation Fleet Bank does not accept the
position as successor Administrative Agent by giving written notice
thereof to all the Banks, the Borrower, and the Company, then the
Majority Banks shall have the right to appoint a successor
Administrative Agent other than Fleet Bank. If no successor
Administrative Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within thirty (30) days
after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of
all the Banks, appoint a successor Administrative Agent. Upon the
acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent
shall thereupon succeed to and become vested with all the rights,
powers, privileges, duties and obligations of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations thereafter under this
Agreement. Administrative Agent shall continue to perform its duties
hereunder until a successor Administrative Agent shall have been
appointed and accepts such appointment in writing. After any retiring
Administrative Agent's resignation, the provisions of this Article
VIII, including, without limitation, the indemnity provisions of
Section 8.7 hereof, shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under
this Agreement.
8.10 Benefit of Article VIII. The provisions of this
Article VIII are intended solely for the benefit of Chase, the
Administrative Agent and all the Banks and may be modified by mutual
agreement of Chase, the Administrative Agent and all of the Banks.
The Borrower, the Company and its other Subsidiaries shall not be
entitled to rely on any such provisions or assert any such provisions
in a claim, or as a defense, against the Administrative Agent or any
Bank.
ARTICLE IX. Indemnification - Costs and Expenses
9.1 Indemnification. The Borrower and the Company agree to
indemnify, defend, and hold harmless Chase, the Administrative Agent
and each of the Banks from and against any and all liabilities,
claims, damages, penalties, expenditures, losses, or charges,
including, but not limited to, all costs of investigation, monitoring,
legal representation, remedial response, removal, restoration or
permit acquisition, which may now or in the future be undertaken,
suffered, paid, awarded, assessed, or otherwise incurred by Chase, the
Administrative Agent, any of the Banks or any other Person as a result
of the presence of, Release of or threatened Release of Hazardous
Substances on, in, under or near the property owned or operated by the
Company or any Subsidiary. The liability of the Borrower and the
Company under the covenants of this Section and Article II are not
limited by any exculpatory provisions in this Agreement or any other
documents securing the Credit and shall survive repayment of the
Revolving Note, expiration or other termination of the Letters of
Credit or any transfer or termination of this Agreement regardless of
the means of such transfer or termination.
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9.2 Expenses. The Borrower shall reimburse the
Administrative Agent and each of the Banks promptly for all of their
respective reasonable counsel fees incurred in connection with this
Agreement and with any indebtedness subject hereto and for any taxes,
filing fees, recording fees and appraisal fees which the
Administrative Agent may be required to pay in connection with the
execution and delivery of this Agreement, the Revolving Note and the
Guaranties. The Borrower shall further reimburse the Administrative
Agent and each of the Banks promptly for any reasonable expenses,
including counsel fees and out-of-pocket expenses, incident to the
monitoring, examination and administration of the collateral subject
to the Security Agreements during the term of this Agreement and to
the enforcement of any provision of this Agreement, the Revolving
Note, the Guaranties or any other document executed in connection with
this Agreement. Without limiting the Borrower's obligation to
reimburse the Administrative Agent and each of the Banks pursuant to
this Section 9.2, the Borrower hereby irrevocably authorizes the Banks
to make Advances to the Borrower and to use the proceeds thereof to
pay any amount owed by the Borrower under this Section 9.2 upon the
failure of the Borrower to make such payment, and the Administrative
Agent agrees to notify the Borrower of the making of such Advances.
Any such Advances shall be made in the minimum amount necessary.
ARTICLE X. Miscellaneous
10.1 Amendments and Waivers. No modification, rescission,
waiver, release or amendment of any provision of this Agreement or any
Security Documents shall be made except by a written agreement
subscribed by duly authorized officers of the Borrower, the Company
and the Administrative Agent with the consent of the Majority Banks;
provided, however, no such amendment, modification or waiver:
(a) which would modify any requirement that any
particular action to be taken hereunder by or on behalf of the Banks
shall be taken by all Banks or by the Majority Banks so as to reduce
the number of Banks required to take such action shall be effective
unless consented to by each Bank;
(b) which would amend this Section or which would
increase any Bank's Commitment or Percentage, reduce the Facility Fee,
extend the Termination Date or release any of the Guaranties shall be
made without the consent of each Bank;
(c) which would extend the due date for, or reduce the
amount of, any payment or prepayment of principal of or interest on
any note (or reduce the principal amount of or rate of interest on any
note) shall be made without the consent of each Bank; or
(d) which would affect adversely the interests, rights
or obligations of the Administrative Agent shall be made without the
consent of the Administrative Agent.
10.2 Delays and Omissions. No course of dealing and no
delay or omission by the Administrative Agent or any of the Banks in
exercising any right or remedy hereunder or with respect to any
indebtedness of the Borrower to any of the Banks shall operate as a
waiver thereof or of any other right or remedy, and no single or
partial exercise thereof shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. All rights and
remedies of the Administrative Agent and the Banks hereunder are
cumulative.
10.3 Participations and Assignments. The Borrower shall
not assign or otherwise transfer any of the rights of the Borrower
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pursuant to this Agreement without the prior written consent of all
the Banks, and any such assignment or other transfer without such
prior written consent shall be void. No consent by any Bank to any
such assignment or other transfer shall release the Borrower from any
indebtedness, liability or obligation of the Borrower pursuant to this
Agreement. No Bank shall assign or otherwise transfer, or grant any
participation in, any indebtedness, liability or obligation of the
Borrower to such Bank pursuant to this Agreement or any of the rights
and remedies of such Bank pursuant to this Agreement without the prior
written consent of the Borrower and the Administrative Agent which
consent shall not be unreasonably withheld, except (a) any Bank may
assign or otherwise transfer, or grant participations in, any
indebtedness, liability or obligation of the Borrower to any other
Bank or to any Affiliate of such Bank, and (b) any Bank may execute an
assignment in favor of a Replacement Bank as contemplated by Section
2.15 hereof.
10.4 Successors and Assigns. The Borrower, Company,
Subsidiary, Administrative Agent, Chase and Bank as such terms are
used herein shall include the legal representatives, successors and
assigns of those parties.
10.5 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing,
unless otherwise expressly provided herein, and shall be deemed to
have been given or made when delivered by hand or by Facsimile (with a
copy by regular mail), three (3) Business Days after being delivered
to a courier for overnight delivery or five (5) Business Days after
being deposited in the first class United States mail, addressed as
follows, or to such other address as may be hereafter notified by the
respective parties hereto:
To the Borrower: Gibraltar Steel Corporation
of New York
3556 Lakeshore Road
Buffalo, New York 14219
Attn: Walter Erazmus
Facsimile No. (716) 826-1589
Telephone No. (716) 826-6500
To the Company: Gibraltar Steel Corporation
3556 Lakeshore Road
Buffalo, New York 14219
Attn: Walter Erazmus
Facsimile No. (716) 826-1589
Telephone No. (716) 826-6500
To Chase or the
Administrative Agent: The Chase Manhattan Bank
2300 Main Place Tower
Buffalo, New York 14202
Attn: Robert J. McArdle
Facsimile No.(716) 843-4939
Telephone No.(716) 858-1418
To any Bank: The address listed on Schedule 1 of
this Agreement.
10.6 Governing Law. This Agreement, the transactions
described herein and the obligations of the parties hereto shall be
construed under, and governed by, the laws of the State of New York,
without regard to its conflict of laws rules which would make the laws
of another jurisdiction applicable.
10.7 Counterparts. This Agreement may be executed in any
number of counterparts and by the Administrative Agent, the Banks, the
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Borrower and the Company on separate counterparts, each of which when
so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same Agreement.
10.8 Titles. Titles to the sections of this Agreement are
solely for the convenience of the parties, and are not an aid in the
interpretation of this Agreement or any part thereof.
10.9 Inconsistent Provisions. The terms of this Agreement
and any related agreements, instruments or other documents shall be
cumulative except to the extent that they are specifically
inconsistent with each other, in which case the terms of this
Agreement shall prevail.
10.10 JURY TRIAL WAIVER. EACH OF THE PARTIES HERETO WAIVES
ANY RIGHT TO TRIAL BY JURY WHICH IT MAY HAVE IN ANY ACTION OR
PROCEEDING, IN LAW OR EQUITY, IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS RELATED HERETO.
10.11 CONSENT TO JURISDICTION. THE BORROWER, THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE BANKS AGREE THAT ANY ACTION OR
PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT MAY BE
COMMENCED IN THE SUPREME COURT OF NEW YORK IN ERIE COUNTY, OR IN THE
DISTRICT COURT OF THE UNITED STATES IN THE WESTERN DISTRICT OF NEW
YORK, AND THE BORROWER, THE COMPANY, THE ADMINISTRATIVE AGENT AND THE
BANKS WAIVE PERSONAL SERVICE OF PROCESS AND AGREE THAT A SUMMONS AND
COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL
BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY
REGISTERED OR CERTIFIED MAIL TO THE BORROWER OR THE ADMINISTRATIVE
AGENT, AS APPROPRIATE, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE
STATE OF NEW YORK OR THE UNITED STATES.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their duly authorized officers, all on the
15th day September, 1997.
BORROWER:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By: /x/ Walter T. Erazmus
Name: Walter T. Erazmus
Title: Vice President
COMPANY:
GIBRALTAR STEEL CORPORATION
By: /x/ Walter T. Erazmus
Name: Walter T. Erazmus
Title: Executive Vice President
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /x/ Robert J. McArdle
Name: Robert J. McArdle
Title: Vice President
BANKS:
THE CHASE MANHATTAN BANK
By: /x/ Robert J. McArdle
Name: Robert J. McArdle
Title: Vice President
FLEET BANK
By: /x/ John J. Larry
Name: John J. Larry
Title: Executive Vice President
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MELLON BANK, N.A.
By: /x/ Sam S. Pepper, Jr.
Name: Sam S. Pepper, Jr.
Title: Vice President
NATIONSBANK, N.A.
By: /x/ Thomas J. Kane
Name: Thomas J. Kane
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /x/ Wayne N. Keller
Name: Wayne N. Keller
Title: Vice President
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SCHEDULE 1
Banks:
Name; Notice Address;
Percentage Commitment LIBOR Lending Office
35.1351% $65,000,000.00 THE CHASE MANHATTAN BANK
Notice Address:
2300 Main Place Tower
Buffalo, New York 14202
Facsimile No. (716) 843-4939
Telephone No. (716) 858-1418
LIBOR Lending Office:
Same as above.
27.0270% $50,000,000.00 FLEET BANK
Notice Address:
10 Fountain Plaza, 9th Fl.
Buffalo, New York 14202
Facsimile No. (716) 847-4491
Telephone No. (716) 847-7332
LIBOR Lending Office:
Same as above.
21.6216% $40,000,000.00 MELLON BANK, N.A.
Notice Addresses:
Three Mellon Bank Center
Pittsburgh, Pennsylvania 15259
Facsimile No. (412) 234-2028
Telephone No. (412) 234-1870
1128 State Street
Erie, Pennsylvania 16501
Facsimile No. (814) 453-7273
Telephone No. (814) 453-7275
LIBOR Lending Office:
Same as above.
10.8109% $20,000,000.00 NATIONSBANK, N.A.
Notice Addresses:
767 Fifth Avenue, 5th Floor
New York, New York 10153-0083
Facsimile No. (212) 753-1083
Telephone No. (212) 407-5341
LIBOR Lending Office:
767 Fifth Avenue, 5th Floor
New York, New York 10153-0083
Facsimile No. (212) ___-____
Telephone No. (212) ___-____
5.4054% $10,000,000 KEYBANK NATIONAL ASSOCIATION
Notice Address:
50 Fountain Plaza, 17th Floor
Buffalo, New York 14202
Facsimile No. (716) ___-____
Telephone No. (212) ___-____
Libor Lending Office:
50 Fountain Plaza, 17th Floor
Buffalo, New York 14202
Facsimile No. (716) ___-____
Telephone No. (212) ___-____
SCHEDULE 3.1.d
Subsidiaries Required to Execute and Deliver Guaranties
The following is a list of the subsidiaries of Gibraltar
Steel Corporation. The names of indirectly owned subsidiaries are
indented under the names of their respective parent corporations:
Gibraltar Steel Corporation of New York New York
Wm. R. Hubbell Steel Corporation Illinois
Mill Transportation Company Illinois
Carolina Commercial Heat Treating Nevada
GSC Flight Services Corp. New York
Gibraltar Strip Steel, Inc. Delaware
Integrated Technologies International, Ltd. Delaware
Cleveland Pickling, Inc. Delaware
GIT Limited New York
Gibraltar Steel Corporation of Tennessee Tennessee
Southeastern Metals Manufacturing Company, Inc. Florida
Southeastern Metals Manufacturing of
South Florida, Inc. Florida
Southeastern Metals Roofing, Inc. Florida
Southeastern Metals Manufacturing of
Tennessee, Inc. Tennessee
DOT Metal Products, Inc. Florida
SCHEDULE 4.11
Subsidiaries
The following is a list of the subsidiaries of Gibraltar
Steel Corporation. The names of indirectly owned subsidiaries are
indented under the names of their respective parent corporations:
Gibraltar Steel Corporation of New York New York
Wm. R. Hubbell Steel Corporation Illinois
Mill Transportation Company Illinois
Carolina Commercial Heat Treating, Inc. Nevada
GSC Flight Services Corp. New York
Southeastern Metals Manufacturing Company, Inc. Florida
Southeastern Metals Manufacturing of
South Florida, Inc. Florida
Southeastern Metals Roofing, Inc. Florida
Southeastern Metals Manufacturing of
Tennessee, Inc. Tennessee
DOT Metal Products, Inc. Florida
Bass Rentals Inc. Florida
Gibraltar Strip Steel, Inc. Delaware
Integrated Technologies International, Ltd. Delaware
Cleveland Pickling, Inc. Delaware
GIT Limited New York
Gibraltar Steel Corporation of Tennessee Tennessee
SCHEDULE 4.15/6.2
Permitted Indebtedness
1. The Borrower has a lease facility with The Chase Manhattan Bank
in the maximum amount of One Million Dollars ($1,000,000.00),
secured by a first Lien on the equipment leased.
2. Industrial Development Revenue Bond in the original principal
amount of $8,000,000.00 held by Fleet Bank and issued for the
benefit of Gibraltar Steel Corporation of Tennessee.
3. Indebtedness of the Company, the Borrower or any Subsidiary owing
to third Persons from time to time in an aggregate principal
amount not to exceed $3,000,000.00 in the aggregate at any one
time.
4. The Borrower may enter into, from time to time, various interest
rate swap, cap and other arrangements with one or more of the
Banks not to exceed one-half of the outstanding principal amount
of Advances at any one time.
5. The Borrower enters into various foreign exchange Contracts
offered by Chase having a maximum daily delivery risk of
$1,000,000.00.
SCHEDULE 4.18
Environmental Matters
Gibraltar Steel Corporation of New York has been identified as a
potentially responsible person (PRP) at 3 sites designated as
Superfund Sites by the U.S. Environmental Protection Agency:
1. Brant New York Site: Several years ago, Gibraltar delivered
waste oil for disposal to Booth Oil Company in Brant. Booth Oil sold
certain waste oil to the Wide Beach Homeowners Association for use on
dirt parking lots. Allegedly, some of the oil sold by Booth contained
PCBs, and the EPA undertook a clean up operation. On September 13,
1989, following the clean up, Gibraltar was served with a demand
letter by the EPA seeking reimbursement of a portion of the
$2,262,000.00 spent on clean up costs. On October 16, 1989, the EPA
sued a number of parties in Federal Court to recover its response
costs. Gibraltar was not named as a defendant. Certain parties
settled with the EPA in January, 1993. To date, no action has been
taken by the EPA or any defendant to name Gibraltar as a party to the
litigation.
2. Notice of Violation from the New York State Department of
Environmental Conservation and fine of $5,000 dated August 8, 1997.
SCHEDULE 6.4
Liens
U.S.X. Corporation filed a financing statement with the Erie
County Clerk, document #013817 on October 4, 1990, providing notice
that iron and steel sheet products inventory delivered by U.S.X.
Corporation under consignment and located at the Integrated Terminals
Facility operated by Integrated Technologies International, Ltd. in
Lackawanna, New York is the property of U.S.X. Corporation.
On October 3, 1990, U.S.X. Corporation filed a financing
statement with the New York Secretary of State, file No. 212373,
providing the same notice as its filing with the Erie County Clerk.
Bethlehem Steel Corp. filed a UCC-1 financing statement in the
Erie County Clerk's Office, document #001205, on January 29, 1991,
providing notice that steel sheets (which may be in coil form)
delivered by Bethlehem Steel Corp. and stored at Integrated
Technologies International, Ltd. facility in Lackawanna, New York is
the property of Bethlehem Steel Corp.
On January 28, 1991, Bethlehem Steel Corp. filed a UCC-1
financing statement with the New York Secretary of State, providing
the same notice as its filing with the Erie County Clerk's Office
concerning inventory delivered by Bethlehem Steel Corp. and stored at
the Lackawanna facility of Integrated Technologies International, Ltd.
Bethlehem Steel Corp. filed a UCC-1 financing statement, file no.
012664, with the Erie County Clerk's on September 12, 1990, providing
notice that steel sheets delivered by Bethlehem Steel Corp. to the
Metals Division on Military Road in Tonawanda is the property of
Bethlehem, and not of Gibraltar.
Olin Corporation filed a UCC-1 financing statement, file no. AH
0078910 on November 9, 1992 with the Ohio Secretary of State against
Gibraltar Strip Steel, Inc. claiming an interest in "Brass Mill
Products," including sheet, strip, rod and tube inventory, owned by
Olin Corporation and held for processing by Gibraltar Strip, Inc. in
an aggregate amount not to exceed $300,000.00 at any one time.
Filings by Fleet Bank of New York in Erie County Clerk's Office
on June 28, 1994, in Book 12, Page 1083, Book 12, Page 1081 and Book
12, page 1077, covering inventory accounts, insurance covering
inventory, records and rights as seller of goods and inventory.
Comparable state filings as above filed on June 22, 1994, with
the Secretary of State of New York, Number 127964 and Number 127966 on
June 22, 1994.
Filing by Fleet Bank of New York in Erie County Clerk's Office on
June 28, 1994, in Book 12, Page 1067 covering building materials,
equipment, condemnation awards, casualty insurance proceeds, and
business interruption proceeds.
AK Steel Corporation filed a financing statement with the New
York Secretary of State, Document No.l 092559, on May 9, 1994,
assigned to the Dai-Ichi Kangyo Bank Limited, New York Branch as
collateral agent, providing notice of its interest in inventory
delivered to Gibraltar Steel, Inc. for processing, safe keeping and
storage.
Filing by EMC Corporation with New York Secretary of State on
September 9, 1993, Number 192994, on Symmetrix.
Filing by Computer Merchants Sales, Inc. and assigned to United
Jersey Bank, filed in the Erie County Clerk's Office in Book 10, Page
5896, on February 22, 1994, covering leased computer equipment and New
York State filing number 58570, on March 28, 1994.
Filing by Sun Financial Group, Inc., and assigned to Citizens
Commercial Leasing Corporation, in Erie County Clerk's Office in Book
10, Page 7446, on April 11, 1996, covering leased computer equipment.
Filing by Xerox Corporation with the New York Secretary of State,
No. 160845 on August 3, 1992, covering leased printer.
Filings by Sun Financial Group, Inc. with New York Secretary of
State, covering various computer equipment: No. 167623, on August 5,
1993; No. 211105 on October 5, 1993; and Number 064434 on April 4,
1994, assigned by Citizens Commercial Leasing Corporation.
Filing by IBM with Florida Secretary of State.
Permitted Encumbrances shall also include each of the following:
(a) Security Interests which were granted prior to the date
hereof and which were disclosed herein;
(b) liens for taxes, assessments, or other governmental
charges or levies to the extent that payment thereof shall not at the
time be required to be made in accordance with the provisions of
Section 5.5;
(c) liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for sums not
overdue or being contested in good faith by appropriate proceedings
and for which appropriate reserves with respect thereto have been
established and maintained by the Company on a consolidated basis in
accordance with GAAP;
(d) liens incurred in the ordinary course of business in
connection with workers' compensation, unemployment insurance, or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases, and contracts
(other than for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
(e) easements, rights-of-way, zoning and similar
restrictions and other similar encumbrances or title defects which, in
the aggregate, are not substantial in amount, and which do not in any
case materially detract from the value of the property subject thereto
or interfere with the ordinary conduct of the business of the Company
or its Subsidiaries; and
(f) judgment liens securing amounts not in excess of
$250,000.00 in existence less than 30 days after the entry thereof or
with respect to which execution has been stayed or with respect to
which the appropriate insurance carrier has agreed in writing that
there is full coverage by insurance.
EXHIBIT A
COMPLIANCE CERTIFICATE - FINANCIAL COVENANTS
GIBRALTAR STEEL CORPORATION OF NEW YORK ("Borrower") and
GIBRALTAR STEEL CORPORATION ("Company") hereby certify to THE CHASE
MANHATTAN BANK, as administrative agent ("Administrative Agent") for
the Banks (as such term is defined in the Amended and Restated Credit
Agreement among the Borrower, the Company, the Administrative Agent
and the Banks dated as of September 15, 1997 ("Agreement")) and to
each of the Banks that:
1. Capitalized terms not defined herein shall have the
meanings set forth in the Agreement.
2. The applicable date for all calculations made in this
Compliance Certificate is __________________. ("Measurement Date").
3. The computations, ratios and calculations set forth
below, all of which are calculated as of the Measurement Date, are
true and correct:
(a) Quarterly Test:
(i) Consolidated Net Worth
as of end of any
fiscal quarter $ ________
(ii) Cumulative Net Income
(from 6/30/97) times
50% plus $120,000,000 = $ ________
(iii) (i) minus (ii) = $ ________
(b) (i) Funded Debt $ ________
(ii) Earnings before
Interest and Taxes plus
depreciation and
amortization = $ ________
(iii) Ratio of (i) to (ii) = to 1
(c) (i) Consolidated Earnings
Before Taxes and Interest
plus depreciation
for the four fiscal
quarters ended ______ = $ ________
(ii) Interest payable
on Consolidated
Total Liabilities
for same period = $ ________
(iii) Ratio of (i) to (ii) = to 1
(d) (i) Current Assets = $ ________
(ii) Current Liabilities = $ ________
(iii) Ratio of (i) to (ii) = to 1
(e) Leverage Test I
(i) Indebtedness of the
Company on a
Consolidated basis = $ ________
(ii) Consolidated Earnings
Before Taxes, Interest,
Depreciation and
Amortization = $ ________
(iii) Capital Expenditures
not funded with proceeds
of the Revolving Credit
as listed on a Schedule
attached hereto
(excluding Capital
Expenditures made in
connection with
permitted acquisitions)= $ ________
(iv) (ii) less (iii) = $ ________
(v) Ratio of (i) to (iv) = to 1
WITNESS the signature of a duly authorized officer of the
Borrower and the Company on , 199_.
Borrower:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By: ___________________________
Name: _________________________
Title: ________________________
Company:
GIBRALTAR STEEL CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
EXHIBIT B
COMPLIANCE CERTIFICATE - GENERAL
GIBRALTAR STEEL CORPORATION OF NEW YORK ("Borrower") and
GIBRALTAR STEEL CORPORATION ("Company") hereby certify to THE CHASE
MANHATTAN BANK as agent ("Administrative Agent") for the Banks (as
such term is defined in the Amended and Restated Credit Agreement
among the Borrower, the Company, the Administrative Agent and the
Banks dated as of September 15, 1997 ("Agreement")), and to each of
the Banks that:
1. Capitalized terms not defined herein shall have the
meanings set forth in the Agreement.
2 The Borrower and the Company have complied with all the
terms, covenants and conditions to be performed or observed by them
contained in the Agreement and the Guaranties to which they are a
party.
3. There exists no Default nor Event of Default on the
date hereof or, if applicable, after giving effect to the Letter of
Credit issued or the Advances made on the date hereof.
4. The representations and warranties contained in the
Agreement or in any certificate, document or financial or other
statement furnished at any time thereunder are true, correct and
complete in all material respects with the same effect as though such
representations and warranties had been made on the date hereof,
except to the extent that any such representation and warranty relates
solely to an earlier date (in which case such representation and
warranty shall be true, correct and complete on and as of such earlier
date).
WITNESS the signature of a duly authorized officer of the
Borrower and the Company on , 1997.
BORROWER:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By:
Name:
Title:
COMPANY:
GIBRALTAR STEEL CORPORATION
By:
Name:
Title:
EXHIBIT C
REPLACEMENT
REVOLVING NOTE
$ _____________ Buffalo, New York
September ___, 1997
FOR VALUE RECEIVED, the undersigned, GIBRALTAR STEEL
CORPORATION OF NEW YORK ("Borrower"), hereby unconditionally promises
to pay on the Termination Date (as defined in the Credit Agreement
hereinafter referred to) to the order of _________________________
, the principal sum equal to the lesser of (a) ___________________
or (b) the aggregate unpaid principal amount of all Advances [and
Swingloans made by The Chase Manhattan Bank ("Bank")] to the Borrower
pursuant to the Amended and Restated Credit Agreement, dated as of
September 15, 1997 among the Borrower, Gibraltar Steel Corporation,
The Chase Manhattan Bank as Administrative Agent ("Administrative
Agent") and the various financial institutions named as Banks therein
(including the Bank), as the same may from time to time be amended,
supplemented or otherwise modified ("Credit Agreement"), together with
interest at the rate and on the terms as specified herein. All
capitalized terms used in this Revolving Note and not otherwise
defined shall have the meanings set forth in the Credit Agreement.
This Revolving Note shall bear interest at the rates and on
the dates determined in accordance with Section 2.4 of the Credit
Agreement.
Payments of both principal and interest are to be made in
lawful money of the United States of America in immediately available
funds at Administrative Agent's Office.
Each entry on the Schedule attached hereto (and any
continuation thereof) shall be prima facie evidence of the facts so
set forth. No failure by the Bank to make, and no error by the Bank
in making, any inscription on the Schedule shall affect the Borrower's
obligation to repay the full principal amount of the Advances and the
Swingloans made by the Bank to the Borrower or the Borrower's
obligation to pay interest thereon at the agreed upon rate. The Bank
is authorized to inscribe the date of the making of each Advance or
Swingloan or conversion of any portion of this Note to a LIBOR Loan,
the date of the continuation of any Base Rate Loan, the amount of each
Advance or Swingloan, its character as a Base Rate Loan or a LIBOR
Loan, the dates on which each LIBOR Period shall begin and end, each
payment of principal and the aggregate unpaid balance of this Note, on
the schedule annexed hereto and constituting a part hereof, or on a
continuation thereof which shall be attached hereto and made a part
hereof.
No failure by the Bank to exercise, and no delay in
exercising, any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the
Administrative Agent or the Bank of any right or power hereunder
preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Bank, or of the
Administrative Agent for the benefit of the Bank, as herein specified
are cumulative and not exclusive of any other rights or remedies,
including those set forth in the Credit Agreement and the Guaranties.
Upon the happening of one or more Events of Default as
described in Section 7.1 of the Credit Agreement, this Revolving Note
may be accelerated in accordance with Section 7.2 of the Credit
Agreement.
The Borrower hereby waives diligence, presentment, protest
and demand, and also notice of protest, demand, dishonor and
nonpayment of this Revolving Note.
This Revolving Note is one of the Revolving Note referred to
in the Credit Agreement, to which reference is hereby made with
respect to prepayment and rights of acceleration of the principal
hereof on the occurrence of certain events.
This Revolving Note shall be construed under, and governed
by, the laws of the State of New York, without regard to its conflict
of laws rules which would make the laws of another jurisdiction
applicable.
This Revolving Note is in renewal and replacement of, but
not in payment of, the Revolving Note executed by Borrower, payable to
The Chase Manhattan Bank, N.A., dated November 10, 1994, in the
original principal amount of $100,000,000.
GIBRALTAR STEEL CORPORATION OF NEW YORK
[Seal] By:
Name: Walter T. Erazmus
Title: Treasurer