EXECUTION COPY
CREDIT AGREEMENT
Dated as of February 26, 1998
among
OSHKOSH TRUCK CORPORATION,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
and
as Swing Line Lender,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BANCAMERICA ROBERTSON STEPHENS
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . 1
1.02 Other Interpretive Provisions . . . . . . . . . . . . . . 28
1.03 Accounting Principles . . . . . . . . . . . . . . . . . . 29
1.04 Currency Equivalents Generally . . . . . . . . . . . . . . 30
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . 30
2.01 Amounts and Terms of Commitments . . . . . . . . . . . . . 30
(a) Term Loan A . . . . . . . . . . . . . . . . . . . . . 30
(b) Term Loan B . . . . . . . . . . . . . . . . . . . . . 30
(c) Term Loan C . . . . . . . . . . . . . . . . . . . . . 30
(d) The Revolving Credit . . . . . . . . . . . . . . . . . 30
2.02 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . 31
2.03 Procedure for Borrowing . . . . . . . . . . . . . . . . . 31
2.04 Conversion and Continuation Elections . . . . . . . . . . 32
2.05 The Swing Line Loans . . . . . . . . . . . . . . . . . . . 33
2.06 Procedure for Swing Line Loans. . . . . . . . . . . . . . 34
2.07 Voluntary Termination or Reduction of Revolving Loan
Commitments . . . . . . . . . . . . . . . . . . . . . . . . 35
2.08 Optional Prepayments . . . . . . . . . . . . . . . . . . . 36
2.09 Mandatory Prepayments of Loans . . . . . . . . . . . . . . 36
2.10 Repayment . . . . . . . . . . . . . . . . . . . . . . . . 38
(a) Term Loans . . . . . . . . . . . . . . . . . . . . . . 38
(b) The Revolving Credit . . . . . . . . . . . . . . . . . 40
2.11 Interest . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.12 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(a) Arrangement, Agency Fees . . . . . . . . . . . . . . . 41
(b) Commitment Fees . . . . . . . . . . . . . . . . . . . 41
2.13 Computation of Fees and Interest . . . . . . . . . . . . . 41
2.14 Payments by the Company . . . . . . . . . . . . . . . . . 41
2.15 Payments by the Lenders to the Agent . . . . . . . . . . . 42
2.16 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . 43
2.17 Security and Subsidiary Guaranty . . . . . . . . . . . . . 43
ARTICLE III THE LETTERS OF CREDIT . . . . . . . . . . . . . . . . 43
3.01 The Letter of Credit Subfacility. . . . . . . . . . . . . 43
3.02 Issuance, Amendment and Renewal of Letters of Credit . . . 45
3.03 Risk Participations, Drawings and Reimbursements . . . . . 46
3.04 Repayment of Participations . . . . . . . . . . . . . . . 48
3.05 Role of the Issuer . . . . . . . . . . . . . . . . . . . . 48
3.06 Obligations Absolute . . . . . . . . . . . . . . . . . . . 49
3.07 Cash Collateral Pledge . . . . . . . . . . . . . . . . . . 50
3.08 Letter of Credit Fees . . . . . . . . . . . . . . . . . . 50
3.09 Uniform Customs and Practice . . . . . . . . . . . . . . . 50
3.10 Utilization of Offshore Currencies . . . . . . . . . . . . 50
3.11 Currency Exchange Fluctuations . . . . . . . . . . . . . . 51
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY . . . . . . . . 51
4.01 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.02 Illegality . . . . . . . . . . . . . . . . . . . . . . . . 52
4.03 Increased Costs and Reduction of Return . . . . . . . . . 53
4.04 Funding Losses . . . . . . . . . . . . . . . . . . . . . . 53
4.05 Inability to Determine Rates . . . . . . . . . . . . . . . 54
4.06 Certificates of Lenders . . . . . . . . . . . . . . . . . 54
4.07 Substitution of Banks. . . . . . . . . . . . . . . . . . . 54
4.08 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE V CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . 55
5.01 Conditions of Initial Credit Extensions . . . . . . . . . 55
(a) Credit Agreement and Notes . . . . . . . . . . . . . . 55
(b) Resolutions; Incumbency . . . . . . . . . . . . . . . 55
(c) Organization Documents; Good Standing . . . . . . . . 55
(d) Legal Opinions . . . . . . . . . . . . . . . . . . . . 56
(e) Payment of Fees . . . . . . . . . . . . . . . . . . . 56
(f) Certificate . . . . . . . . . . . . . . . . . . . . . 56
(g) Consummation of the McNeilus Acquisition . . . . . . . 56
(h) Approvals and Consents . . . . . . . . . . . . . . . . 56
(i) Senior Subordinated Notes . . . . . . . . . . . . . . 57
(j) Collateral Documents . . . . . . . . . . . . . . . . . 57
(k) Insurance Policies . . . . . . . . . . . . . . . . . . 58
(l) Environmental Review . . . . . . . . . . . . . . . . . 58
(m) Repayment of Prior Indebtedness. . . . . . . . . . . . 58
(n) Other Documents . . . . . . . . . . . . . . . . . . . 58
5.02 Conditions to All Credit Extensions . . . . . . . . . . . 58
(a) Notice, Application . . . . . . . . . . . . . . . . . 58
(b) Continuation of Representations and Warranties . . . . 58
(c) No Existing Default . . . . . . . . . . . . . . . . . 58
ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 59
6.01 Corporate Existence and Power . . . . . . . . . . . . . . 59
6.02 Corporate Authorization; No Contravention . . . . . . . . 59
6.03 Governmental Authorization . . . . . . . . . . . . . . . . 60
6.04 Binding Effect . . . . . . . . . . . . . . . . . . . . . . 60
6.05 Litigation . . . . . . . . . . . . . . . . . . . . . . . . 60
6.06 No Default . . . . . . . . . . . . . . . . . . . . . . . . 60
6.07 ERISA Compliance . . . . . . . . . . . . . . . . . . . . . 60
6.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . 61
6.09 Title to Properties . . . . . . . . . . . . . . . . . . . 61
6.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.11 Financial Condition . . . . . . . . . . . . . . . . . . . 61
6.12 Environmental Matters . . . . . . . . . . . . . . . . . . 62
6.13 Collateral Documents. . . . . . . . . . . . . . . . . . . 63
6.14 Regulated Entities . . . . . . . . . . . . . . . . . . . . 63
6.15 No Burdensome Restrictions . . . . . . . . . . . . . . . . 63
6.16 Copyrights, Patents, Trademarks and Licenses, etc. . . . . 64
6.17 Capitalization; Subsidiaries . . . . . . . . . . . . . . . 64
6.18 Insurance . . . . . . . . . . . . . . . . . . . . . . . . 64
6.19 Swap Obligations . . . . . . . . . . . . . . . . . . . . . 64
6.20 Acquisition Documents . . . . . . . . . . . . . . . . . . 64
6.21 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.22 Subordination Provisions . . . . . . . . . . . . . . . . . 65
6.23 Year 2000 Compliance. . . . . . . . . . . . . . . . . . . 65
6.24 Full Disclosure . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE VII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . 65
7.01 Financial Statements . . . . . . . . . . . . . . . . . . . 65
7.02 Certificates; Other Information . . . . . . . . . . . . . 66
7.03 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.04 Preservation of Corporate Existence, Etc . . . . . . . . . 68
7.05 Maintenance of Property . . . . . . . . . . . . . . . . . 68
7.06 Insurance . . . . . . . . . . . . . . . . . . . . . . . . 68
7.07 Payment of Obligations . . . . . . . . . . . . . . . . . . 69
7.08 Compliance with Laws . . . . . . . . . . . . . . . . . . . 69
7.09 Compliance with ERISA . . . . . . . . . . . . . . . . . . 69
7.10 Inspection of Property and Books and Records . . . . . . . 69
7.11 Environmental Laws . . . . . . . . . . . . . . . . . . . . 69
7.12 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . 70
7.13 Further Assurances . . . . . . . . . . . . . . . . . . . . 70
7.14 Additional Guaranties and Personal Property Pledge . . . . 70
7.15 Additional Real Property . . . . . . . . . . . . . . . . . 71
7.16 Additional Pledge. . . . . . . . . . . . . . . . . . . . . 71
ARTICLE VIII NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . 71
8.01 Limitation on Liens . . . . . . . . . . . . . . . . . . . 72
8.02 Disposition of Assets . . . . . . . . . . . . . . . . . . 73
8.03 Consolidations and Mergers . . . . . . . . . . . . . . . . 74
8.04 Loans and Investments . . . . . . . . . . . . . . . . . . 75
8.05 Limitation on Indebtedness . . . . . . . . . . . . . . . . 76
8.06 Transactions with Affiliates . . . . . . . . . . . . . . . 77
8.07 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . 78
8.08 Contingent Obligations . . . . . . . . . . . . . . . . . . 78
8.09 Joint Ventures . . . . . . . . . . . . . . . . . . . . . . 78
8.10 Lease Obligations . . . . . . . . . . . . . . . . . . . . 78
8.11 Restricted Payments . . . . . . . . . . . . . . . . . . . 79
8.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . 79
8.13 Change in Business . . . . . . . . . . . . . . . . . . . . 80
8.14 Accounting Changes . . . . . . . . . . . . . . . . . . . . 80
8.15 Amendments to Charter and Agreements; Subordinated
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 80
8.16 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . 80
8.17 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . 80
8.18 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . 81
8.19 Capital Expenditures . . . . . . . . . . . . . . . . . . . 81
8.20 Restrictive Agreements. . . . . . . . . . . . . . . . . . 81
ARTICLE IX EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 81
9.01 Event of Default . . . . . . . . . . . . . . . . . . . . . 81
(a) Non-Payment . . . . . . . . . . . . . . . . . . . . . 81
(b) Representation or Warranty . . . . . . . . . . . . . . 81
(c) Specific Defaults . . . . . . . . . . . . . . . . . . 81
(d) Other Defaults . . . . . . . . . . . . . . . . . . . . 82
(e) Cross-Default . . . . . . . . . . . . . . . . . . . . 82
(f) Insolvency; Voluntary Proceedings . . . . . . . . . . 82
(g) Involuntary Proceedings . . . . . . . . . . . . . . . 82
(h) ERISA . . . . . . . . . . . . . . . . . . . . . . . . 83
(i) Monetary Judgments . . . . . . . . . . . . . . . . . . 83
(j) Non-Monetary Judgments . . . . . . . . . . . . . . . . 83
(k) Change of Control . . . . . . . . . . . . . . . . . . 83
(l) Loss of Licenses . . . . . . . . . . . . . . . . . . . 83
(m) Guarantor Defaults . . . . . . . . . . . . . . . . . . 83
(n) Invalidity of Subordination Provisions . . . . . . . . 84
(o) Collateral . . . . . . . . . . . . . . . . . . . . . . 84
9.02 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.03 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . 85
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . 85
10.01 Appointment and Authorization; "Agent" . . . . . . . . . 85
10.02 Delegation of Duties . . . . . . . . . . . . . . . . . . 85
10.03 Liability of Agent . . . . . . . . . . . . . . . . . . . 85
10.04 Reliance by Agent . . . . . . . . . . . . . . . . . . . . 86
10.05 Notice of Default . . . . . . . . . . . . . . . . . . . . 86
10.06 Credit Decision . . . . . . . . . . . . . . . . . . . . . 86
10.07 Indemnification of Agent . . . . . . . . . . . . . . . . 87
10.08 Agent in Individual Capacity . . . . . . . . . . . . . . 87
10.09 Successor Agent . . . . . . . . . . . . . . . . . . . . . 87
10.10 Withholding Tax . . . . . . . . . . . . . . . . . . . . . 88
10.11 Collateral Matters . . . . . . . . . . . . . . . . . . . 89
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 90
11.01 Amendments and Waivers . . . . . . . . . . . . . . . . . 90
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 91
11.03 No Waiver; Cumulative Remedies . . . . . . . . . . . . . 92
11.04 Costs and Expenses . . . . . . . . . . . . . . . . . . . 92
11.05 Company Indemnification . . . . . . . . . . . . . . . . . 93
11.06 Marshalling; Payments Set Aside . . . . . . . . . . . . . 94
11.07 Successors and Assigns . . . . . . . . . . . . . . . . . 94
11.08 Assignments, Participations, etc. . . . . . . . . . . . . 94
11.09 Confidentiality . . . . . . . . . . . . . . . . . . . . . 96
11.10 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . 97
11.11 Automatic Debits of Fees . . . . . . . . . . . . . . . . 97
11.12 Notification of Addresses, Lending Offices, Etc. . . . . 97
11.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . 97
11.14 Severability . . . . . . . . . . . . . . . . . . . . . . 97
11.15 No Third Parties Benefited . . . . . . . . . . . . . . . 98
11.16 Governing Law and Jurisdiction . . . . . . . . . . . . . 98
11.17 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . 98
11.18 Judgment . . . . . . . . . . . . . . . . . . . . . . . . 99
11.19 Entire Agreement . . . . . . . . . . . . . . . . . . . . 99
SCHEDULES
Schedule 1.01 Existing Letters of Credit
Schedule 2.01 Commitments
Schedule 6.07 ERISA
Schedule 6.11 Pro Forma
Schedule 6.12 Environmental Matters
Schedule 6.17 Capitalization; Subsidiaries and Minority
Interests
Schedule 6.18 Insurance Matters
Schedule 8.01 Permitted Liens
Schedule 8.04 Investments
Schedule 8.05 Permitted Indebtedness
Schedule 8.08 Contingent Obligations
Schedule 11.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Promissory Note
Exhibit F Form of Swing Line Note
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of February 26, 1998,
among Oshkosh Truck Corporation, a Wisconsin corporation (the "Company"),
the several financial institutions from time to time party to this
Agreement (collectively, the "Lenders"; individually, a "Lender"), and
Bank of America National Trust and Savings Association, as Swing Line
Lender and as agent for the Lenders.
WHEREAS, the Lenders have agreed to make available to the Company
secured term loans and a secured revolving credit facility with a letter
of credit subfacility and a swing line subfacility upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the
following meanings:
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially all of
the assets of a Person, or of any business or division of a Person,
(b) the acquisition of in excess of 50% of the capital stock,
partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary, or
(c) a merger or consolidation or any other combination with another
Person (other than a Person that is a Subsidiary) provided that the
Company or the Subsidiary is the surviving entity.
"Acquisition Documents" means the Stock Purchase Agreement and
the other documents, certificates and agreements delivered in
connection with the McNeilus Acquisition.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. A Person shall be deemed to
control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction
of the management and policies of the other Person, whether through
the ownership of voting securities, membership interests, by
contract, or otherwise.
"Agent" means BofA in its capacity as agent for the Lenders
hereunder, and any successor agent arising under Section 10.09.
"Agent-Related Persons" means BofA and any successor agent
arising under Section 10.09 and any successor letter of credit
issuing bank hereunder, together with their respective Affiliates
(including, in the case of BofA, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons
and Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule 11.02 or such other address as the Agent may from
time to time specify.
"Aggregate Commitment" means the sum of (a) the Aggregate
Revolving Loan Commitment and (b) the Aggregate Term Loan
Commitment.
"Aggregate Revolving Loan Commitment" means the aggregate
Revolving Loan Commitments of the Lenders.
"Aggregate Term Loan A Commitment" means the aggregate Term
Loan A Commitments of the Lenders, equal to One Hundred Million
Dollars ($100,000,000).
"Aggregate Term Loan B Commitment" means the aggregate Term
Loan B Commitments of the Lenders equal to Sixty-Two Million Five
Hundred Thousand Dollars ($62,500,000).
"Aggregate Term Loan C Commitment" means the aggregate Term
Loan C Commitments of the Lenders equal to Sixty-Two Million Five
Hundred Thousand Dollars ($62,500,000).
"Aggregate Term Loan Commitment" means the aggregate Term Loan
Commitments of the Lenders, equal to Two Hundred Twenty-Five
Million Dollars ($225,000,000).
"Agreement" means this Credit Agreement.
"Agreement Currency" has the meaning specified in subsection
11.18.
"Applicable Base Rate Margin" means, subject to the last
sentence of this definition, for any period, the applicable of the
following percentages in effect with respect to such period as the
Senior Debt to EBITDA Ratio of the Company shall fall within the
indicated ranges:
Applicable Base
Senior Debt to EBITDA Ratio Rate Margin
(in basis points)
Less Greater Than Revolving Term Term Term
Than or Equal to Loan Loan A Loan B Loan C
1. 2.0:1.0 ---- 0 0 100 125
2. 2.5:1.0 2.0:1.0 25 25 100 125
3. 3.0:1.0 2.5:1.0 50 50 100 125
4. 3.5:1.0 3.0:1.0 75 75 100 125
5. ---- 3.5:1.0 100 100 125 150
The Senior Debt to EBITDA Ratio shall be calculated by the Company
as of the end of each fiscal quarter, commencing with the fiscal
quarter ending June 30, 1998, and shall be reported to the Agent
pursuant to a Compliance Certificate executed by a Responsible
Officer of the Company and delivered pursuant to subsection 7.02(b)
hereof. The Applicable Base Rate Margin shall be adjusted, if
necessary, on the third Business Day after the delivery of such
certificate; provided, that if such certificate, together with the
financial statements to which such certificate relates, is not
delivered to the Agent by the fifth Business Day after the date on
which the related financial statements are due to be delivered to
the Agent pursuant to subsection 7.01(a) or (b), then, from such
fifth Business Day until the third Business Day after delivery of
such certificate, the Applicable Base Rate Margin shall be equal to
100 basis points for Revolving Loans and Term Loan A, 125 basis
points for Term Loan B and 150 basis points for Term Loan C. From
the Closing Date until adjusted as described above, the Applicable
Base Rate Margin shall be equal to 75 basis points for Revolving
Loans and Term Loan A, 100 basis points for Term Loan B and 125
basis points for Term Loan C.
"Applicable Commitment Fee Percentage" means, subject to the
last sentence of this definition, for any period, the applicable of
the following percentages in effect with respect to such period as
the Senior Debt to EBITDA Ratio of the Company shall fall within
the indicated ranges:
Applicable Commitment
Fee Percentage
Senior Debt to EBITDA Ratio (in basis points)
Less Greater Than
Than or Equal to
1. 2.0:1.0 ---- 20
2. 2.5:1.0 2.0:1.0 25
3. 3.0:1.0 2.5:1.0 30
4. 3.5:1.0 3.0:1.0 35
5. ---- 3.5:1.0 40
The Senior Debt to EBITDA Ratio shall be calculated by the Company
as of the end of each fiscal quarter, commencing with the fiscal
quarter ending June 30, 1998, and shall be reported to the Agent
pursuant to a Compliance Certificate executed by a Responsible
Officer of the Company and delivered pursuant to subsection 7.02(b)
hereof. The Applicable Commitment Fee Percentage shall be
adjusted, if necessary, on the third Business Day after the
delivery of such certificate; provided, that if such certificate,
together with the financial statements to which such certificate
relates, is not delivered to the Agent by the fifth Business Day
after the date on which the related financial statements are due to
be delivered to the Agent pursuant to subsection 7.01(a) or (b),
then, from such fifth Business Day until the third Business Day
after delivery of such certificate, the Applicable Commitment Fee
Percentage shall be equal to 40 basis points. From the Closing
Date until adjusted as described above, the Applicable Commitment
Fee Percentage shall be equal to 35 basis points.
"Applicable Currency" means, as to any particular Letter of
Credit, Dollars or the Offshore Currency in which it is denominated
or payable.
"Applicable Offshore Rate Margin" means, subject to the last
sentence of this definition, for any period, the applicable of the
following percentages in effect with respect to such period as the
Senior Debt to EBITDA Ratio of the Company shall fall within the
indicated ranges:
Applicable Offshore
Rate Margin
Senior Debt to EBITDA Ratio (in basis points)
Less Greater Than Revolving Term Term Term
Than or Equal to Loan Loan A Loan B Loan C
1. 2.0:1.0 ---- 125 125 225 250
2. 2.5:1.0 2.0:1.0 150 150 225 250
3. 3.0:1.0 2.5:1.0 175 175 225 250
4. 3.5:1.0 3.0:1.0 200 200 225 250
5. ---- 3.5:1.0 225 225 250 275
The Senior Debt to EBITDA Ratio shall be calculated by the Company
as of the end of each fiscal quarter, commencing with the fiscal
quarter ending June 30, 1998, and shall be reported to the Agent
pursuant to a Compliance Certificate executed by a Responsible
Officer of the Company and delivered pursuant to subsection 7.02(b)
hereof. The Applicable Offshore Rate Margin shall be adjusted, if
necessary, on the third Business Day after the delivery of such
certificate, with such adjustment to apply to all Interest Periods
then outstanding and beginning thereafter until the next adjustment
date; provided, that if such certificate, together with the
financial statements to which such certificate relates, is not
delivered to the Agent by the fifth Business Day after the date on
which the related financial statements are due to be delivered to
the Agent pursuant to subsection 7.01(a) or (b), then, from such
fifth Business Day until the third Business Day after delivery of
such certificate, the Applicable Offshore Rate Margin shall be
equal to 225 basis points for Revolving Loans and Term Loan A, 250
basis points for Term Loan B and 275 basis points for Term Loan C.
From the Closing Date until adjusted as described above, the
Applicable Offshore Rate Margin shall be equal to 200 basis points
for Revolving Loans and Term Loan A, 225 basis points for Term Loan
B and 250 basis points for Term Loan C.
"Approved Fund" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in
bank loans and is advised or managed by the same investment advisor
as such Lender or by an Affiliate of such investment advisor.
"Arranger" means BancAmerica Robertson Stephens, a Delaware
corporation.
"Asset Disposition" has the meaning specified in Section 8.02.
"Assignee" has the meaning specified in subsection 11.08(a).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all disbursements of
internal counsel.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of
interest in effect for such day as publicly announced from time to
time by BofA in San Francisco, California, as its "reference rate."
(The "reference rate" is a rate set by BofA based upon various
factors including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate.)
Any change in the reference rate announced by BofA shall take
effect at the opening of business on the day specified in the
public announcement of such change.
"Base Rate Loan" means a Loan or an L/C Advance that bears
interest based on the Base Rate.
"basis point" means one one-hundredth of one percent.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of
Revolving Loans or Term Loans of the same Type made to the Company
on the same day by the Lenders under Article II, and, in the case
of Offshore Rate Loans, having the same Interest Period. The
making of a Swing Line Loan shall not constitute a Borrowing.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.03.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City, Chicago or
San Francisco are authorized or required by law to close and, if
the applicable Business Day relates to any Offshore Rate Loan,
means such a day on which dealings are carried on in the applicable
offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or
any other law, rule or regulation, whether or not having the force
of law, in each case, regarding capital adequacy of any bank or of
any corporation controlling a bank.
"Capital Stock" means (a) in the case of a corporation,
corporate stock, (b) in the case of an association or business
entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock, (c) in
the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
"Cash Collateralize" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuers and
the Lenders, as additional collateral for the L/C Obligations, cash
or deposit account balances pursuant to documentation in form and
substance reasonably satisfactory to the Agent and the Issuers
(which documents are hereby consented to by the Lenders).
Derivatives of such term shall have corresponding meanings. The
Company hereby grants the Agent, for the benefit of the Agent, the
Issuers and the Lenders, a security interest in all such cash and
deposit account balances. Cash collateral shall be maintained in
blocked, non-interest bearing deposit accounts at BofA while an
Event of Default is continuing and shall be transferred to an
interest bearing account as soon as practicable after the
termination of such Event of Default.
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"Change of Control" means the occurrence of any of the
following: (a) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one
or a series of related transactions, of all or substantially all of
the assets of the Company and its Subsidiaries taken as a whole to
any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act); (b) the adoption of a plan relating to the
liquidation or dissolution of the Company; (c) the consummation of
any transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as defined
above), other than the Principals and their Related Parties,
becomes the "beneficial owner" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all securities
that such person has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of
a subsequent condition), directly or indirectly of more than 30% of
the Voting Stock of the Company (measured by voting power rather
than number of shares); (d) the Company consolidates with, or
merges with or into, any Person, or any Person consolidates with,
or merges with or into, the Company in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the
Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where the Voting
Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock of the
surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such
issuance); or (e) during any period of 25 consecutive calendar
months, commencing on the date of this Agreement, the ceasing of
those individuals (the "Continuing Directors") who (i) were
directors of the Company on the first day of each such period or
(ii) subsequently became directors of the Company and whose actual
election or initial nomination for election subsequent to that date
was approved by a majority of the Continuing Directors then on the
board of directors of the Company, to constitute a majority of the
board of directors of the Company.
"Closing Date" means the date on which all conditions
precedent set forth in Section 5.01 are satisfied or waived by all
Lenders (or, in the case of subsection 5.01(e), waived by the
Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by the Company or
any Guarantor and their respective Subsidiaries in or upon which a
Lien now or hereafter exists in favor of the Lenders, or the Agent
on behalf of the Lenders, whether under this Agreement, under the
Collateral Documents or under any other documents executed by any
such Person and delivered to the Agent or the Lenders.
"Collateral Documents" means, collectively, (a) the Security
Agreement, the Mortgages, the Pledge Agreement and all other
security agreements, mortgages, deeds of trust, patent and
trademark assignments, lease assignments, guarantees and other
similar agreements between the Company or any Subsidiary or any
Guarantor and the Lenders or the Agent for the benefit of the
Lenders now or hereafter delivered to the Lenders or the Agent
pursuant to or in connection with the transactions contemplated
hereby, and all financing statements (or comparable documents now
or hereafter filed in accordance with the Uniform Commercial Code
or comparable law) against the Company or any Subsidiary or any
Guarantor as debtor in favor of the Lenders or the Agent for the
benefit of the Lenders as secured party, and (b) any amendments,
supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"Commitment", as to each Lender, means (a) such Lender's Term
Commitment, plus (b) such Lender's Revolving Loan Commitment.
"Company" has the meaning specified in the introductory clause
hereto.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit C.
"Computation Date" has the meaning specified in subsection
3.10.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with
or without recourse, (a) with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including
any obligation of that Person (i) to purchase, repurchase or
otherwise acquire such primary obligations or any security
therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation,
or (iv) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof (each, a
"Guaranty Obligation"); (b) with respect to any Surety Instrument
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to
purchase any materials, supplies or other property from, or to
obtain the services of, another Person if the relevant contract or
other related document or obligation requires that payment for such
materials, supplies or other property, or for such services, shall
be made regardless of whether delivery of such materials, supplies
or other property is ever made or tendered, or such services are
ever performed or tendered; or (d) in respect of any Swap Contract;
provided, that obligations arising under the Letter Agreements
shall not be treated as Contingent Obligations or Guaranty
Obligations at any time at which MFSI's tangible net worth
(determined in accordance with GAAP) is greater than $1,000,000.
The amount of any Contingent Obligation, (w) in the case of
Guaranty Obligations, shall be deemed equal to the lesser of (i)
the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated
or if indeterminable, the maximum reasonably anticipated liability
in respect thereof, and (ii) the stated amount of the guaranty, (x)
in the case of Contingent Obligations in respect of Swap Contracts,
shall be deemed equal to the aggregate Swap Termination Value of
such Swap Contracts, (y) in the case of Contingent Obligations in
respect of Surety Instruments other than Non-Surety L/C's, shall be
deemed equal to the probable amount of the expected liability
thereunder, and (z) in the case of Contingent Obligations in
respect of Non-Surety L/C's, shall be deemed equal to (i) the face
amount of outstanding Non-Surety L/C's which are not Letters of
Credit and (ii) the outstanding amount of L/C Obligations in
respect of Non-Surety L/C's which are Letters of Credit.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Loans of one Type to another
Type, or (b) continues as Loans of the same Type, but with a new
Interest Period, Loans having Interest Periods expiring on such
date.
"Credit Extension" means and includes (a) the making of any
Loans hereunder, and (b) the Issuance of any Letters of Credit
hereunder.
"Current Assets" means all assets of the Company, on a
consolidated basis, which should, in accordance with GAAP, be
classified as current assets.
"Current Liabilities" means all liabilities of the Company, on
a consolidated basis, which should, in accordance with GAAP, be
classified as current liabilities, other than current maturities in
respect of the Loans.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured
or otherwise remedied during such time) constitute an Event of
Default.
"Dividend Supplement Amount" means, as at any date of
determination, an amount equal to (a) the lesser of (1) $5,000,000
and (2) the cumulative excess of (A) Restricted Equity Payments
which the Company was permitted by Section 8.11(c) (but without
giving effect to Section 8.11(c)(i)(A)(2) thereof) to pay during
the period commencing on October 1, 1998 and ending on the date of
determination over (B) the amount of Restricted Equity Payments
actually paid by the Company during such period minus (b) the
aggregate amount of incremental Restricted Equity Payments
previously designated by the Company pursuant to Section
8.11(c)(i)(A)(2).
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, and (b) as
to any amount denominated in an Offshore Currency, the equivalent
amount in Dollars as determined by the Agent at such time on the
basis of the Spot Rate for the purchase of Dollars with such
Offshore Currency on the most recent Computation Date provided for
in subsection 3.10.
"Domestic Subsidiary" means a Subsidiary organized under the
laws of the United States or any political subdivision or any
agency, department or instrumentality thereof.
"EBITDA" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, determined in accordance with
GAAP, the sum of (a) the net income (or net loss) for such period,
plus (b) all amounts treated as expenses for depreciation and
interest and the amortization of intangibles of any kind to the
extent included in the determination of such net income (or loss),
plus (c) all accrued taxes on or measured by income to the extent
included in the determination of such net income (or net loss),
plus (d) all charges (or less any credits) in such period arising
from LIFO valuation, plus (or less, if negative) (e) the amount of
post-retirement health benefits accrued in such period less the
amount of post-retirement health benefits paid in such period, in
an amount of up to $1,000,000 in any period, plus (f) all charges
arising from the write down of fixed assets, severance payments and
relocation expenses taken after the Closing Date and on or prior to
September 30, 1999, in an amount not to exceed $5,000,000 in the
aggregate after the date hereof, plus (g) all charges (or less any
credits) arising from the write-off of intangible assets (without
duplication of any amounts set forth in clause (b)); provided,
however, that net income (or net loss) shall be computed (i)
without giving effect to extraordinary losses or extraordinary
gains, (ii) without regard to the net income (or net loss) of
Leasing Subsidiaries or to the carrying value of the equity
interest of the Company and its Subsidiaries in Leasing
Subsidiaries, and (iii) without giving effect to any dividends or
other distributions received by the Company and its Subsidiaries
from Leasing Subsidiaries or any equity contributions made by the
Company and its Subsidiaries to Leasing Subsidiaries; provided,
further, that for any measurement which relates back to a period
prior to the date hereof, EBITDA shall be determined by adding (x)
the EBITDA of the Company and its Subsidiaries for such period to
(y) the EBITDA of McNeilus and its Subsidiaries for such period,
which for the purposes of clause (y) shall be determined without
regard to (A) any interest expenses or earnings of MFSI in such
period, (B) an aggregate amount not to exceed $2,800,000 in
compensation paid to the former shareholders of McNeilus prior to
the date hereof at a rate in excess of $800,000 per year or (C) an
aggregate amount not to exceed $1,100,000 in charitable
contributions made by McNeilus and its Subsidiaries prior to the
date hereof at a rate in excess of $100,000 per year; and provided,
further, that the amounts determined pursuant to clauses (a)
through (g) above shall not include amounts attributable to Nations
Casualty Insurance, Inc.
"Effective Amount" means (a) with respect to any Revolving
Loans, Swing Line Loans and Term Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any
Borrowings and prepayments or repayments of Revolving Loans, Swing
Line Loans and Term Loans occurring on such date; and (b) with
respect to any outstanding L/C Obligations on any date, the amount
of such L/C Obligations on such date after giving effect to any
Issuances of Letters of Credit occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements of outstanding
unpaid drawings under any Letters of Credit or any reductions in
the maximum amount available for drawing under Letters of Credit
taking effect on such date. For purposes of subsection 2.07(a) the
Effective Amount shall be determined without giving effect to any
mandatory prepayments to be made under subsection 2.07(b).
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $100,000,000; (b)
a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or
agency located in the United States; (c) a Person that is primarily
engaged in the business of commercial banking and that is (i) a
Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a
Lender is a Subsidiary, or (iii) a Person of which a Lender is a
Subsidiary; (d) as to the Term Loans, (i) an "accredited investor",
as such term is defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended (other than the Company or an
Affiliate of the Company) or (ii) a finance company, insurance
company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is primarily
engaged in the business of making, purchasing or otherwise
investing in commercial loans; and (e) any other entity approved by
the Company and the Agent.
"Environmental Claims" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental Law,
or for release or injury to the environment or threat to public
health, personal injury (including sickness, disease or death),
property damage, natural resources damage, or otherwise alleging
liability or responsibility for damages (punitive or otherwise),
investigation, cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or
other type of relief, resulting from or based upon the presence,
placements, discharge, emission or release (including intentional
and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placements, spills,
leaks, discharges, emissions or releases) of any Hazardous Material
at, in, or from any property, whether or not owned by the Company
or any Subsidiary or taken as collateral, or in connection with any
operations of the Company.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case relating to
environmental, health, safety and land use matters, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Clean Air
Act, the Federal Water Pollution Control Act of 1972, the Solid
Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act, and the Emergency Planning
and Community Right-to-Know Act.
"Environmental Permits" has the meaning specified in
subsection 6.12(b).
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m)
and (o) of the Code for purposes of provisions relating to Section
412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of
operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d)
the filing of a notice of intent to terminate, the treatment of a
Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate
a Pension Plan or Multiemployer Plan; (e) an event or condition
which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Pension Plan or Multiemployer Plan; or
(f) the imposition of any liability under Title IV of ERISA, other
than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in
the definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances
specified in Section 9.01.
"Event of Loss" means, with respect to any property, any of
the following: (a) any loss, destruction or damage of such
property; (b) any institution of any proceedings for the
condemnation or seizure of such property or for the exercise of any
right of eminent domain; or (c) any actual condemnation, seizure or
taking, by exercise of the power of eminent domain or otherwise, of
such property, or confiscation of such property or the requisition
of the use of such property.
"Exchange Act" means the Securities Exchange Act of 1934 and
the regulations promulgated thereunder.
"Excess Cash Flow" means for any fiscal year, (a) the
consolidated pretax net income of the Company and its Subsidiaries
for such fiscal year, as determined in accordance with GAAP (but
without regard to the net income (or net loss) of Leasing
Subsidiaries or to the carrying value of the equity interest of the
Company and its Subsidiaries in Leasing Subsidiaries), plus (b) all
amounts treated as expenses for depreciation and the amortization
of intangibles of any kind to the extent included in the
determination of such net income, less (c) the sum of (i)
principal payments to the Lenders in such fiscal year in respect of
the Term Loan and in respect of the Revolving Loan on the Revolving
Termination Date, plus (ii) dividends paid by the Company in such
fiscal year in accordance with the terms of this Agreement, plus
(iii) capital expenditures actually made by the Company and its
Subsidiaries in such fiscal year, but only to the extent permitted
by Section 8.19, plus (iv) increases (or less decreases) in Working
Capital in such fiscal year, plus (or less, if negative) (v)
mandatory cash equity contributions by the Company or any
Subsidiary in such fiscal year to any Leasing Subsidiary to the
extent permitted by the Credit Agreement, net of cash distributions
to the Company or any Subsidiary from any Leasing Subsidiary in
such fiscal year, plus (vi) cash taxes paid in such fiscal year by
the Company or any Subsidiary, plus (vii) cash interest paid in
such fiscal year by the Company or any Subsidiary, less (viii) non-
cash charges (or plus non-cash credits) taken by the Company or any
Subsidiary in such fiscal year; provided, that net income (or net
loss) shall be computed without giving effect to increases or
decreases in net income (or net loss) arising from changes in
equity in the income of Leasing Subsidiaries; provided, further,
that for the purpose of determining Excess Cash Flow for the
payment due on January 15, 1999, changes in Working Capital shall
be determined by reference to the Company's Working Capital as of
September 30, 1997, determined on a pro forma basis after giving
effect to the transactions occurring on the Closing Date.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or,
if for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00
a.m. (Chicago time) on that day by each of three leading brokers of
Federal funds transactions in Chicago selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.10(a).
"Fixed Charges" means, with respect to the Company and its
Subsidiaries on a consolidated basis, as of any date of
determination, (a) interest expenses paid or accrued on outstanding
Indebtedness for the period of four fiscal quarters ending on the
date of determination, and (b) principal payments on Indebtedness
required to be made in such period; provided, that for the purposes
of all measurements through December 31, 1998, the amount
determined by reference to clauses (a) and (b) shall be calculated
by aggregating interest expenses and required principal payments
for the period from March 1, 1998 through the date of
determination, dividing such amount by the number of months in such
period and multiplying such result by 12.
"Floor Plan Financing Facility" means any facility entered or
to be entered into by the Company or any Subsidiary pursuant to
which such person may (a) incur Indebtedness to purchase vehicles
and/or related equipment from certain vendors for the prompt resale
to customers in the ordinary course of business and (b) grant a
security interest in such vehicles and/or related equipment to
secure such borrowings.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"Further Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges (including, without limitation, net
income taxes and franchise taxes), and all liabilities with respect
thereto, imposed by any jurisdiction on account of amounts payable
or paid pursuant to Section 4.01.
"FX Trading Office" means the Foreign Exchange Trading Center,
Chicago, Illinois, of BofA, or such other of BofA's offices as the
Agent may designate from time to time.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board (or agencies with similar
functions of comparable stature and authority within the U.S.
accounting profession), which are applicable to the circumstances
as of the date of determination.
"Governmental Authority" means (a) any nation or government,
any state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing, and (b)
the National Association of Insurance Commissioners.
"Guarantors" means each of the Subsidiaries of the Company
from time to time party to the Subsidiary Guaranty.
"Guaranty Obligation" has the meaning specified in the
definition of "Contingent Obligation."
"Hazardous Materials" means all those substances that are
regulated by, or which may form the basis of liability or a
standard of conduct under, any Environmental Law, including any
substance identified under any Environmental Law as a pollutant,
contaminant, hazardous waste, hazardous constituent, special waste,
hazardous substance, hazardous material, or toxic substance, or
petroleum or petroleum-derived substance or waste.
"Honor Date" has the meaning specified in subsection 3.03(b).
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into in the ordinary
course of business on ordinary terms); (c) all Contingent
Obligations with respect to Surety Instruments; (d) all obligations
evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with
respect to property acquired by the Person (even though the rights
and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such
property); (f) all obligations with respect to capital leases; (g)
all indebtedness referred to in clauses (a) through (f) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien
upon or in property (including accounts and contract rights) owned
by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; and (h) all Guaranty
Obligations in respect of indebtedness or obligations of others of
the kinds referred to in clauses (a) through (g) above; provided,
that "Indebtedness" shall not include any indebtedness incurred by
the Company or any Subsidiary pursuant to any Floor Plan Financing
Facility to the extent that it shall be non-interest bearing. For
all purposes of this Agreement, the Indebtedness of any Person
shall include all recourse Indebtedness of any partnership or joint
venture or limited liability company in which such Person is a
general partner or a joint venturer or a member and as to which
such Person is or may become directly liable.
"Indemnified Liabilities" has the meaning specified in Section
11.05.
"Indemnified Person" has the meaning specified in Section
11.05.
"Independent Auditor" has the meaning specified in subsection
7.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for
the benefit of creditors, composition, marshalling of assets for
creditors, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its creditors; in
each case, undertaken under U.S. Federal, state or foreign law,
including the Bankruptcy Code.
"Interest Payment Date" means, as to any Offshore Rate Loan,
the last day of each Interest Period applicable to such Loan and,
as to any Base Rate Loan, the last Business Day of each calendar
quarter; provided, however, that if any Interest Period for an
Offshore Rate Loan exceeds three months, the date that falls three
months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one,
two, three or six months thereafter as selected by the Company in
its Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(a) if any Interest Period would otherwise end on a day
that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the preceding Business Day;
(b) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period;
(c) no Interest Period for any Term Loan shall extend
beyond the maturity date of such Term Loan and no Interest
Period for any Revolving Loan shall extend beyond February 26,
2004; and
(d) no Interest Period applicable to a Term Loan or
portion thereof shall extend beyond any date upon which is due
any scheduled principal payment in respect of the Term Loans
unless the aggregate principal amount of Term Loans
represented by Base Rate Loans, or by Offshore Rate Loans
having Interest Periods that will expire on or before such
date, equals or exceeds the amount of such principal payment.
"Investments" has the meaning specified in Section 8.04.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the
Code.
"Issuance Date" has the meaning specified in subsection
3.01(a).
"Issue" means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of,
such Letter of Credit; and the terms "Issued," "Issuing" and
"Issuance" have corresponding meanings.
"Issuer" means, in respect of each Letter of Credit, BofA or
such other Revolving Lender selected by the Company which has
agreed to act as issuer of such Letter of Credit hereunder.
"Joint Venture" means a single-purpose corporation,
partnership, limited liability company, joint venture or other
similar legal arrangement (whether created by contract or conducted
through a separate legal entity) now or hereafter formed by the
Company or any of its Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
"Judgment Currency" has the meaning specified in subsection
11.18.
"L/C Advance" means each Revolving Lender's participation in
any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for
amendment of outstanding standby or commercial documentary letters
of credit as shall at any time be in use at the applicable Issuer,
as such Issuer shall request.
"L/C Application" means an application form for issuances of
standby or commercial documentary letters of credit as shall at any
time be in use at the applicable Issuer, as such Issuer shall
request.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been
reimbursed on the date when made nor converted into a Borrowing of
Revolving Loans under subsection 3.03(c).
"L/C Commitment" means the commitment of the Issuers to Issue,
and the commitment of the Revolving Lenders severally to
participate in, Letters of Credit from time to time Issued or
outstanding under Article III, in an aggregate amount not to exceed
on any date (a) the Aggregate Revolving Loan Commitment less (b)
the aggregate principal amount of Revolving Loans and Swing Line
Loans then outstanding; provided that the L/C Commitment is a part
of the Aggregate Revolving Credit Commitment, rather than a
separate, independent commitment.
"L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Letters
of Credit, including all outstanding L/C Borrowings.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any standard form
documents used by any Issuer for letter of credit issuances.
"Lease Assets" means, with respect to any lease, all of the
following property and interests in property whether now existing
or existing in the future or hereafter acquired or arising: (a) all
vehicles or equipment manufactured or refurbished by the Company or
any of its Subsidiaries (and truck chassis, cement block boom
trucks and similar vehicles manufactured or refurbished by third
parties) and acquired by a Leasing Subsidiary in connection with
such assets being contemporaneously leased to a third party; (b)
all leases and other contracts or agreements relating to the lease
financing by a customer of vehicles or equipment manufactured or
refurbished by the Company or any of its Subsidiaries; (c) all
accounts receivable and other obligations incurred by lessees in
connection with the foregoing, no matter how evidenced; (d) all
rights to any vehicles or equipment subject to any of the foregoing
after or in connection with creation of the foregoing, including,
without limitation, returned or repossessed goods; (e) all reserves
and credit balances with respect to any such lease contracts or
agreements or lessees; (f) all letters of credit, security or
guarantees for any of the foregoing; (g) all insurance policies or
reports relating to any of the foregoing; and (h) all books and
records relating to any of the foregoing.
"Leasing Subsidiary" means MFSI, Oshkosh/McNeilus Financial
Services, Inc., Oshkosh/McNeilus Financial Services Partnership and
any other Subsidiary that is designated by the Board of Directors
of the Company as a Leasing Subsidiary and that is exclusively
engaged in Leasing Transactions and activities related thereto. If
at any time any Leasing Subsidiary should engage in a material
transaction or activity other than those described above, it shall
thereafter cease to be a Leasing Subsidiary hereunder.
"Leasing Transaction" means (a) the formation of Leasing
Subsidiaries (whether in one or a series of related transactions);
(b) the sale or other disposition to a third party of Lease Assets
or an interest therein; (c) the borrowing of money secured by Lease
Assets; or (d) the sale or other disposition of Lease Assets or an
interest therein to a Leasing Subsidiary followed by a financing
transaction in connection with such sale or disposition of such
Lease Assets (whether such financing transaction is effected by
such Leasing Subsidiary or by a third party to whom such Leasing
Subsidiary sells such Lease Assets or interest therein); provided,
that in each of the foregoing, the Company or its Subsidiaries
receive or have received in cash at least 95% of the aggregate sale
price attributed to the vehicles and equipment that underlie the
leases financed in such transaction.
"Lender" has the meaning specified in the introductory clause
hereto. References to the "Lenders" shall include BofA, including
in its capacity as an Issuer and as Swing Line Lender; for purposes
of clarification only, to the extent that BofA may have any rights
or obligations in addition to those of the Lenders due to its
status as an Issuer or as Swing Line Lender, its status as such
will be specifically referenced.
"Lending Office" means, as to any Lender, the office or
offices of such Lender specified as its "Lending Office" or
"Domestic Lending Office" or "Offshore Lending Office", as the case
may be, on Schedule 11.02, or such other office or offices as such
Lender may from time to time notify the Company and the Agent.
"Letter Agreements" means the letter agreements set forth in
clause (iii) of Schedule 3.6(b) to the Stock Purchase Agreement and
in place on the date of this Agreement concerning the maintenance
by McNeilus of a minimum tangible net worth of MFSI for the benefit
of the lenders to MFSI immediately prior to the date of this
Agreement.
"Letters of Credit" means any letters of credit (whether
standby letters of credit or commercial documentary letters of
credit) Issued by the Issuers pursuant to Article III, including
without limitation the existing letters of credit set forth on
Schedule 1.01 hereto.
"Leverage Ratio" means, as of any date of determination, the
ratio of (a) all Indebtedness of the Company and its Subsidiaries
determined on a consolidated basis as of such date, to (b) EBITDA
for the period of four fiscal quarters ending on such date.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or similar interest of any
kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional
sale or other title retention agreement, the interest of a lessor
under a capital lease, any financing lease having substantially the
same economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which such
lien relates as debtor, under the Uniform Commercial Code or any
comparable law) and any contingent or other agreement to provide
any of the foregoing, but not including the interest of a lessor
under an operating lease.
"Loan" means an extension of credit by a Lender to the Company
under Article II or Article III in the form of a Revolving Loan,
Term Loan, Swing Line Loan or L/C Advance.
"Loan Documents" means this Agreement, any Notes, the Fee
Letters, the L/C-Related Documents, the Collateral Documents, the
Rate Swap Documents and all other documents delivered to the Agent
or any Lender in connection herewith.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties or condition (financial or otherwise) of the Company or
the Company and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Company or any Subsidiary to
perform under any Loan Document and to avoid any Event of Default;
or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Company or any
Subsidiary of any Loan Document.
"Material Subsidiary" means, at any time, any Subsidiary
having at such time either (a) total (gross) revenues for the
preceding four fiscal quarter period in excess of 1% of the total
(gross) revenues of the Company and its Subsidiaries for such
period or (b) a shareholder's equity, as of the last day of the
preceding fiscal quarter, with a book value in excess of 1% of Net
Worth, based in each case, to the extent applicable, upon the
Company's most recent annual or quarterly financial statements
delivered to the Agent pursuant to Section 7.01.
"McNeilus" means McNeilus Companies, Inc., a Minnesota
corporation.
"McNeilus Acquisition" means the acquisition by the Company of
all of the issued and outstanding capital stock of McNeilus,
pursuant to the terms and conditions of the Stock Purchase
Agreement.
"MFSI" means McNeilus Financial Services, Inc., a Minnesota
corporation.
"Mortgage" means any deed of trust, mortgage, leasehold
mortgage, assignment of rents or other document creating a Lien on
real property or any interest in real property.
"Mortgaged Property" means all property subject to a Lien
pursuant to a Mortgage.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any
ERISA Affiliate makes, is making, or is obligated to make
contributions or, during the preceding three calendar years, has
made, or been obligated to make, contributions.
"Net Proceeds" means (a) with respect to any Asset
Disposition, the sum of cash or readily marketable cash equivalents
received (including by way of a cash generating sale or discounting
of a note or receivable, but excluding any other consideration
received in the form of assumption by the acquiring Person of debt
or other obligations relating to the properties or assets so
disposed of or received in any other non-cash form) therefrom,
whether at the time of such disposition or subsequent thereto, or
(b) with respect to any sale or issuance of equity securities of
the Company or any Subsidiary, cash or readily marketable cash
equivalents received (but excluding any other non-cash form)
therefrom, whether at the time of such disposition, sale or
issuance or subsequent thereto, net, in either case, of all legal,
title and recording tax expenses, commissions and other fees and
all costs and expenses incurred and all federal, state, local and
other taxes required to be accrued as a liability as a consequence
of such transactions and, in the case of an Asset Disposition, net
of all payments made by the Company or any of its Subsidiaries on
any Indebtedness which is secured by such assets pursuant to a
Permitted Lien upon or with respect to such assets or which must by
the terms of such Lien, or in order to obtain a necessary consent
to such Asset Disposition, or by applicable law be repaid out of
the proceeds from such Asset Disposition.
"Net Worth" means the shareholders' equity of the Company as
determined in accordance with GAAP, but excluding any portion
thereof in excess of $23,000,000 attributable to the equity
interest of the Company and its Subsidiaries in Leasing
Subsidiaries.
"Non-Surety L/C's" means letters of credit which are not
Surety L/C's.
"Note" means a promissory note executed by the Company in
favor of a Lender pursuant to subsection 2.02(b), in substantially
the form of Exhibit E.
"Notice of Borrowing" means a notice in substantially the form
of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document
owing by the Company to any Lender, the Agent, or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now
existing or hereafter arising.
"Offshore Currency" means at any time, any currency that, in
the opinion of the Agent and the applicable Issuer, is at such time
freely traded in the offshore interbank foreign exchange markets
and is freely transferable and freely convertible into Dollars.
"Offshore Rate" means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same Borrowing, the
rate of interest per annum (rounded upward to the next 1/16th of
1%) determined by the Agent as follows:
Offshore Rate = IBOR
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect
on such day (whether or not applicable to any Lender) under
regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"IBOR" means the rate of interest per annum determined by
the Agent as the rate at which dollar deposits in the
approximate amount of BofA's Offshore Rate Loan for such
Interest Period would be offered by BofA's Grand Cayman
Branch, Grand Cayman B.W.I. (or such other office as may be
designated for such purpose by BofA), to major banks in the
offshore dollar interbank market at their request at
approximately 11:00 a.m. (Chicago time) two Business Days
prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to
all Offshore Rate Loans then outstanding as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on
the Offshore Rate.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the rights
of preferred shareholders of such corporation, any shareholder
rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from
the execution, delivery, performance, enforcement or registration
of, or otherwise with respect to, this Agreement or any other Loan
Documents.
"Participant" has the meaning specified in subsection
11.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which the Company or
any ERISA Affiliate sponsors, maintains, or to which it makes, is
making, or is obligated to make contributions, or otherwise has any
liability, or in the case of a multiple employer plan (as described
in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Swap Obligations" means all obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising
under Swap Contracts, provided that each of the following criteria
is satisfied: (a) such obligations are (or were) entered into by
such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments
or assets held or reasonably anticipated by such Person, or changes
in the value of securities issued by such Person in conjunction
with a securities repurchase program not otherwise prohibited
hereunder, and not for purposes of speculation or taking a "market
view"; and (b) such Swap Contracts do not contain any provision
("walk-away" provision) exonerating the non-defaulting party from
its obligation to make payments on outstanding transactions to the
defaulting party.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or Governmental
Authority.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which the Company or any ERISA Affiliate sponsors or
maintains or to which the Company or any ERISA Affiliate makes, is
making, or is obligated to make contributions or otherwise has any
liability and includes any Pension Plan.
"Pledge Agreement" means that certain Stock and Note Pledge
Agreement dated as of the date hereof between the Company and the
Agent.
"Pledged Collateral" has the meaning specified in the Pledge
Agreement.
"Principal" means (a) J. Peter Mosling, Jr., (b) Stephen P.
Mosling and (c) Cadence Company, as long as a majority of its
economic interest is held by J. Peter Mosling, Jr., Stephen P.
Mosling and their Related Parties.
"Pro Forma" has the meaning ascribed thereto in Section 6.11.
"Pro Rata Revolving Share" means, as to any Revolving Lender,
(a) at any time at which the Aggregate Revolving Loan Commitment
remains outstanding, the percentage equivalent (expressed as a
decimal rounded to the ninth decimal place) at such time of such
Lender's Revolving Loan Commitment divided by the Aggregate
Revolving Loan Commitment, and (b) after the termination of the
Aggregate Revolving Loan Commitment, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at
such time of the principal amount of such Lender's outstanding
Revolving Loans (other than Swing Line Loans) divided by the
aggregate principal amount of the outstanding Revolving Loans
(other than Swing Line Loans) of all the Lenders.
"Pro Rata Share" means, as to any Lender, (a) in respect of a
particular Loan and/or Commitment, (i) at any time at which the
Commitments in respect of such Loan remain outstanding, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Lender's Commitment in respect
of such Loan divided by the combined Commitments in respect of such
Loan, and (ii) after the termination of the Commitments in respect
of such Loan, the percentage equivalent (expressed as a decimal,
rounded to the ninth decimal place) at such time of the principal
amount outstanding of such Loans held by such Lender divided by the
aggregate principal amount outstanding of such Loans held by all
Lenders, and (b) in respect of all Loans and/or Commitments, (i) at
any time at which the Aggregate Commitment (or any portion thereof)
remains outstanding, the percentage equivalent (expressed as a
decimal, rounded to the ninth decimal place) at such time of such
Lender's Commitments in respect of all Loans (and if any Term Loans
are outstanding, with the Term Loan Commitment deemed to be
outstanding to the extent of the principal amount of the related
Term Loan which is then outstanding) divided by the Aggregate
Commitment, and (b) after the termination of the Aggregate
Commitment, the percentage equivalent (expressed as a decimal,
rounded to the ninth decimal place) at such time of the principal
amount of such Lender's outstanding Loans (including such Lender's
ratable share of outstanding Swing Line Loans and L/C Obligations)
divided by the aggregate principal amount of the outstanding Loans
and L/C Obligations of all of the Lenders.
"Rate Swap Documents" means, collectively, all Swap Contracts
entered into between the Company and any Lender in respect of any
portion of the Obligations.
"Related Parties" means, with respect to any Principal, (a)
any 70% (or more) owned Subsidiary or spouse or immediate family
member (in the case of an individual) of such Principal, or (b) any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons holding a 70% or more
controlling interest of which consist of such Principal and/or such
other Persons referred to in the immediately preceding clause (a).
"Remarketing Agreements" means agreements guaranteeing the
residual or future resale value of products manufactured and sold
or leased by the Company or any Subsidiary.
"Reportable Event" means, any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other than
any such event for which the 30-day notice requirement under ERISA
has been waived in regulations issued by the PBGC.
"Required Lenders" means at any time Lenders then holding at
least 51% of the sum of (a) the then aggregate unpaid principal
amount of the Term Loans, plus (b) the amount of the Aggregate
Revolving Loan Commitment (or if the Revolving Loan Commitment has
been terminated, then the aggregate principal amount outstanding of
Revolving Loans and Swing Line Loans, plus the outstanding amount
of L/C Obligations); provided, that, if no principal amount of any
Loan is then outstanding, then "Required Lenders" shall mean
Lenders then having at least 51% of the Aggregate Revolving Loan
Commitment.
"Required Revolving Lenders" means at any time Revolving
Lenders then holding at least 51% of the then aggregate unpaid
principal amount of the Revolving Loans (other than Swing Line
Loans), or, if no such principal amount is then outstanding,
Revolving Lenders then having at least 51% of the Aggregate
Revolving Loan Commitment.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination
of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or
to which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, the
president, the chief financial officer, the treasurer or the
corporate controller of the Company, or any other officer having
substantially the same authority and responsibility.
"Revolving Lender" means any Lender having a Revolving Loan
Commitment.
"Revolving Loan" has the meaning specified in
subsection 2.01(d).
"Revolving Loan Commitment", as to each Revolving Lender, has
the meaning specified in subsection 2.01(d).
"Revolving Termination Date" means the earlier to occur of:
(a) February 26, 2004; and
(b) the date on which the Aggregate Revolving Loan
Commitment terminates in accordance with the provisions of
this Agreement.
"Same Day Funds" means (a) with respect to disbursements and
payments in Dollars, immediately available funds, and (b) with
respect to disbursements and payments in an Offshore Currency, same
day or other funds as may be determined by the Agent to be
customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant
Offshore Currency.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
"Security Agreement" means that certain Security Agreement
dated as of the date hereof between the Company and the Agent.
"Senior Debt to EBITDA Ratio" means, as of any date, the ratio
of (a) all Indebtedness of the Company and its Subsidiaries which
is not contractually subordinated to other Indebtedness or
obligations of such Persons, on a consolidated basis, as of the
date of determination, to (b) EBITDA for the period of four fiscal
quarters ending on the date of determination.
"Senior Subordinated Debt Documents" means the Senior
Subordinated Indenture, the Senior Subordinated Notes and the other
documents and instruments executed and delivered in connection
therewith.
"Senior Subordinated Indenture" means that certain Indenture
dated as of February 26, 1998 between the Company and the
subsidiary guarantors party thereto and Firstar Trust Company.
"Senior Subordinated Notes" means those certain $100,000,000
8.75% Senior Subordinated Notes of the Company due 2008.
"Solvent" means, as to any Person at any time, that (a) the
fair value of the property of such Person is greater than the
amount of such Person's liabilities (including disputed, contingent
and unliquidated liabilities) as such value is established and
liabilities evaluated for purposes of Section 101(31) of the
Bankruptcy Code and, in the alternative, for purposes of the
Illinois Uniform Fraudulent Transfer Act; (b) the present fair
saleable value of the property of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured; (c) such
Person is able to realize upon its property and pay its debts and
other liabilities (including disputed, contingent and unliquidated
liabilities, but applying the reasonably anticipated liability,
after giving effect to payments under insurance policies and
indemnity agreements which such Person reasonably expects to
receive) as they mature in the normal course of business; (d) such
Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature; and (e) such Person is not engaged in
business or a transaction, and is not about to engage in business
or a transaction, for which such Person's property would constitute
unreasonably small capital.
"Spot Rate" for a currency means the rate quoted by BofA as
the spot rate for the purchase by BofA of such currency with
another currency through its FX Trading Office at approximately
10:30 a.m. (Chicago time) on the date two Business Days prior to
the date as of which the foreign exchange computation is made.
"Stated Amount" means the stated or face amount of a Letter of
Credit to the extent available at the time for drawing (subject to
presentment of all requested documents), as the same may be
increased or decreased from time to time in accordance with the
terms of such Letter of Credit.
"Stock Purchase Agreement" means that certain Stock Purchase
Agreement dated as of December 8, 1997 and amended as of February
26, 1998 by and among McNeilus, the shareholders of McNeilus and
the Company.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other
business entity of which more than 50% of the voting stock,
membership interests or other equity interests (in the case of
Persons other than corporations), is owned or controlled directly
or indirectly by the Person, or one or more of the Subsidiaries of
the Person, or a combination thereof; provided, that for the
purposes of Articles VII and VIII hereof (and any definitions
incorporated therein) and of calculating the Senior Debt to EBITDA
Ratio, the Leverage Ratio, Net Worth and Excess Cash Flow,
"Subsidiary" shall exclude all Leasing Subsidiaries. Unless the
context otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of the Company.
"Subsidiary Guaranty" means that certain Subsidiary Guaranty
dated as of the date hereof by certain of the Subsidiaries in favor
of the Agent and the Lenders.
"Subsidiary Security Agreement" means that certain Subsidiary
Security Agreement dated as of the date hereof between certain of
the Subsidiaries and the Agent.
"Surety Bonds" means all bonds issued for the account of the
Company or any Subsidiary to assure the performance thereby (or to
the extent issued in the ordinary course of business, any other
Person) under any contract entered into in the ordinary course of
business.
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, performance bonds, Surety Bonds, Remarketing
Agreements and similar instruments.
"Surety L/C's" means letters of credit which are issued for
the account of the Company or any Subsidiary to provide credit
support, in the ordinary course of business, for (a) a contract bid
by any such Person, (b) the performance by any such Person under
any contract, (c) any warranty extended by any such Person and (d)
the repayment of advance payments made to any such Person.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap or option, bond, note or bill option,
interest rate option, forward foreign exchange transaction, cap,
collar or floor transaction, currency swap, cross-currency rate
swap, swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise
clearly requires, any master agreement relating to or governing any
or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a)
for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined by
the Company based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap
Contracts (which may include any Lender).
"Swing Line Commitment" means at any time, the obligation of
the Swing Line Lender to make Swing Line Loans pursuant to Section
2.05.
"Swing Line Lender" means BofA, in its capacity as provider of
the Swing Line Loans.
"Swing Line Loan" means a Loan made by the Swing Line Lender.
"Swing Line Note" means a promissory note in substantially the
form of Exhibit F.
"Swing Line Rate" means, at any time, for each Swing Line
Loan, (a) the Offshore Rate in effect as of the Business Day of the
making of a Swing Line Loan (or if extended, the date of such
extension), assuming an Interest Period of one month, plus (b) the
Applicable Offshore Rate Margin in respect of Revolving Loans then
in effect, plus (c) 50 basis points per annum.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or
similar charges, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, respectively,
taxes imposed on or measured by its net income by the jurisdiction
(or any political subdivision thereof) under the laws of which such
Lender or the Agent, as the case may be, is organized or maintains
a lending office.
"Term Loan" means, collectively, Term Loan A, Term Loan B and
Term Loan C.
"Term Loan A Commitment" means, as to each Lender, such
Lender's Term Loan A Commitment, as specified on Schedule 2.01.
"Term Loan B Commitment" means, as to each Lender, such
Lender's Term Loan B Commitment, as specified on Schedule 2.01.
"Term Loan C Commitment" means, as to each Lender, such
Lender's Term Loan C Commitment, as specified on Schedule 2.01.
"Term Loan Commitment" means, as to each Lender, the aggregate
amount of such Lender's Term Loan A Commitment, Term Loan B
Commitment and Term Loan C Commitment.
"Term Loan A" has the meaning specified in subsection 2.01(a).
"Term Loan B" has the meaning specified in subsection 2.01(b).
"Term Loan C" has the meaning specified in subsection 2.01(c).
"Transaction Documents" means the Loan Documents, the
Acquisition Documents and the Senior Subordinated Debt Documents.
A "Type" of Loan means its status as either a Base Rate Loan
or an Offshore Rate Loan.
"UCC" means the Uniform Commercial Code as in effect in the
State of Illinois.
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with
the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of
America.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is entitled to vote in the election of
the board of directors (or other governing body) of such Person.
"Waivable Term Loan B Prepayment" has the meaning specified in
subsection 2.09(d).
"Waivable Term Loan C Prepayment" has the meaning specified in
subsection 2.09(e).
"Wholly-Owned Subsidiary" means any corporation in which
(other than directors' qualifying shares required by law) 100% of
the capital stock of each class having ordinary voting power, and
100% of the capital stock of every other class, in each case (or,
in the case of Persons other than corporations, membership
interests or other equity interests), at the time as of which any
determination is being made, is owned, beneficially and of record,
by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
"Working Capital" means (a) Current Assets, less (b) Current
Liabilities.
1.02 Other Interpretive Provisions. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the
defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular
provision of this Agreement; and subsection, Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(iv) The term "property" includes any kind of
property or asset, real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of
this Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are
cumulative and shall each be performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the
result of negotiations among and have been reviewed by counsel to the
Agent, the Company and the other parties, and are the products of all
parties. Accordingly, they shall not be construed against the Lenders or
the Agent merely because of the Agent's or Lenders' involvement in their
preparation.
1.03 Accounting Principles. (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall
be construed, and all financial computations required under this Agreement
shall be made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
(c) In the event that any changes in GAAP occur after the
date of this Agreement and such changes result in a material variation in
the method of calculation of financial covenants or other terms of this
Agreement, then the Company, the Agent and the Lenders agree to amend such
provisions of this Agreement so as to equitably reflect such changes so
that the criteria for evaluating the Company's financial condition will be
the same after such changes as if such changes had not occurred.
1.04 Currency Equivalents Generally. For all purposes of this
Agreement (but not for purposes of the preparation of any financial
statements delivered pursuant hereto), the equivalent in any Offshore
Currency or other currency of an amount in Dollars, and the equivalent in
Dollars of an amount in any Offshore Currency or other currency, shall be
determined at the Spot Rate.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. (a) Term Loan A. Each
Lender severally agrees, on the terms and conditions set forth herein, to
make a single loan to the Company (each such loan, a "Term Loan A") on the
Closing Date in an amount not to exceed such Lender's Term Loan A
Commitment as set forth on Schedule 2.01. Amounts borrowed as a Term Loan
A which are repaid or prepaid by the Company may not be reborrowed.
(b) Term Loan B. Each Lender severally agrees, on the terms
and conditions set forth herein, to make a single loan to the Company
(each such loan, a "Term Loan B") on the Closing Date in an amount not to
exceed such Lender's Term Loan B Commitment as set forth on Schedule 2.01.
Amounts borrowed as a Term Loan B which are repaid or prepaid by the
Company may not be reborrowed.
(c) Term Loan C. Each Lender severally agrees, on the terms
and conditions set forth herein, to make a single loan to the Company
(each such loan, a "Term Loan C") on the Closing Date in an amount not to
exceed such Lender's Term Loan C Commitment as set forth on Schedule 2.01.
Amounts borrowed as a Term Loan C which are repaid or prepaid by the
Company may not be reborrowed.
(d) The Revolving Credit. Each Revolving Lender severally
agrees, on the terms and conditions set forth herein, to make loans to the
Company (each such loan, a "Revolving Loan") from time to time on any
Business Day during the period from the Closing Date to the Revolving
Termination Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth on Schedule 2.01 (such amount, as the
same may be reduced under Section 2.07 or as a result of one or more
assignments under Section 11.08, the Revolving Lender's "Revolving Loan
Commitment"); provided, however, that, after giving effect to any
Borrowing of Revolving Loans, the Effective Amount of all outstanding
Revolving Loans, together with all Term Loans and Swing Line Loans
outstanding at such time, and the Dollar Equivalent of the Effective
Amount of all L/C Obligations, shall not at any time exceed the Aggregate
Commitment; and provided further, that the Effective Amount of the
Revolving Loans of any Revolving Lender plus the participation of such
Revolving Lender in the Dollar Equivalent of the Effective Amount of all
L/C Obligations and such Revolving Lender's Pro Rata Revolving Share of
any outstanding Swing Line Loans shall not at any time exceed such
Revolving Lender's Revolving Loan Commitment. Within the limits of each
Revolving Lender's Commitment, and subject to the other terms and
conditions hereof, the Company may borrow under this subsection 2.01(d),
prepay under Section 2.08 and reborrow under this subsection 2.01(d).
2.02 Loan Accounts. (a) The Loans made by each Lender and the
Letters of Credit Issued by the Issuers shall be evidenced by one or more
accounts or records maintained by such Lender or Issuers, as the case may
be, in the ordinary course of business. The accounts or records
maintained by the Agent, the Issuers and each Lender shall be conclusive
absent manifest error of the amount of the Loans made by the Lenders to
the Company and the Letters of Credit Issued for the account of the
Company, and the interest and payments thereon. Any failure so to record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with respect
to the Loans or any Letter of Credit.
(b) The Company shall issue to each Lender notes in the form
of Exhibit E ("Notes") to evidence such Lender's Loans (or, in the case of
Swing Line Loans, in the form of Exhibit F). Each Lender may, instead of
or in addition to maintaining a loan account, endorse on the schedule
annexed to its Note(s) the date, amount and maturity of each Loan made by
it and the amount of each payment of principal made by the Company with
respect thereto. Each such Lender is irrevocably authorized by the
Company to endorse its Note(s) or Swing Line Note, as applicable, and each
Lender's record shall be conclusive absent manifest error; provided,
however, that the failure of a Lender to make, or an error in making, a
notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Company hereunder or under any such Note or
Swing Line Note to such Lender.
2.03 Procedure for Borrowing. (a) Each Borrowing shall be made
upon the Company's irrevocable notice delivered to the Agent in the form
of a Notice of Borrowing (which notice must be received by the Agent prior
to 10:30 a.m. (Chicago time) (i) two Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Loans; and (ii) on the
requested Borrowing Date, in the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in
an aggregate minimum amount of $3,000,000 or any multiple of
$250,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing; and
(D) with respect to Offshore Rate Loans, the
duration of the Interest Period applicable to such Loans
included in such notice. If the Notice of Borrowing fails to
specify the duration of the Interest Period for any Borrowing
comprised of Offshore Rate Loans, such Interest Period shall
be three months;
provided, however, that with respect to the Borrowing to be made on the
Closing Date, such Borrowing will consist of Base Rate Loans only; and
further provided that if the Agent has determined in its sole discretion
that syndication of the Loans has not been completed, then all Borrowings
during the first 30 days following the Closing Date shall have the same
Interest Period and shall be Base Rate Loans or Offshore Rate Loans for
Interest Periods no longer than one month; provided, further, that with
the consent of each applicable Lender, Loans made during such 30 day
period may have interest periods of less than one month.
(b) The Agent will promptly notify each applicable Lender of
its receipt of any Notice of Borrowing and, in respect of Borrowings of
Revolving Loans, of the amount of such Revolving Lender's Pro Rata
Revolving Share of that Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of
each Borrowing available to the Agent for the account of the Company at
the Agent's Payment Office by 1:00 p.m. (Chicago time) on the Borrowing
Date requested by the Company in funds immediately available to the Agent.
The proceeds of all such Loans will then be made available to the Company
by the Agent at such office by crediting the account of the Company on the
books of BofA with the aggregate of the amounts made available to the
Agent by the Lenders and in like funds as received by the Agent.
(d) After giving effect to any Borrowing, unless the Agent
shall otherwise consent, there may not be more than 10 different Interest
Periods in effect.
(e) The Company hereby authorizes the Lenders and the Agent
to accept Notices of Borrowing based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be
acting on behalf of the Company. The Company agrees to deliver promptly
to the Agent a written confirmation of each telephonic notice, signed by a
Responsible Officer or an authorized designee. If the written
confirmation differs in any material respect from the action taken by the
Agent and the Lenders, the records of the Agent and the Lenders shall
govern absent manifest error.
2.04 Conversion and Continuation Elections. (a) The Company may,
upon irrevocable notice to the Agent in accordance with subsection
2.04(b):
(i) elect, as of any Business Day, in the case of Base
Rate Loans, or as of the last day of the applicable Interest
Period, in the case of any other Type of Revolving Loans or Term
Loans, to convert any such Loans (or any part thereof in an amount
not less than $3,000,000 or that is in an integral multiple of
$250,000 in excess thereof) into Loans of any other Type; or
(ii) elect as of the last day of the applicable
Interest Period, to continue any Revolving Loans or Term Loans
having Interest Periods expiring on such day (or any part thereof
in an amount not less than $3,000,000, or that is in an integral
multiple of $250,000 in excess thereof);
provided, that if at any time the aggregate amount of Offshore Rate Loans
in respect of any Borrowing is reduced, by payment, prepayment, or
conversion of part thereof to be less than $3,000,000 such Offshore Rate
Loans may, upon written notice by the Company delivered to the Agent and
the Swing Line Lender concurrent with its notice of prepayment and
compliance with Section 2.06, be converted into Swing Line Loans, or, in
the absence of such a conversion, shall automatically convert into Base
Rate Loans, and on and after such date the right of the Company to
continue such Loans as, and convert such Loans into, Offshore Rate Loans
shall terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than 10:30
a.m. (Chicago time) at least (i) two Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or
continued as Offshore Rate Loans; and (ii) on the Conversion/Continuation
Date, if the Loans are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted
or continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Loans, as the case
may be, or if any Default or Event of Default then exists, the Company
shall be deemed to have elected to convert such Offshore Rate Loans into
Base Rate Loans effective as of the expiration date of such Interest
Period.
(d) The Agent will promptly notify each applicable Lender of
its receipt of a Notice of Conversion/Continuation, or, if no timely
notice is provided by the Company, the Agent will promptly notify each
applicable Lender of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to the
respective outstanding principal amounts of the Loans with respect to
which the notice was given held by each Lender.
(e) Unless the Required Lenders otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to
have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, unless the Agent shall otherwise consent, there may not be more
than 10 different Interest Periods in effect.
(g) The Company hereby authorizes the Lenders and the Agent
to accept Notices of Conversion/Continuation based on telephonic notices
made by any person or persons the Agent or any Lender in good faith
believes to be acting on behalf of the Company. The Company agrees to
deliver promptly to the Agent a written confirmation of each telephonic
notice, signed by a Responsible Officer. If the written confirmation
differs in any material respect from the action taken by the Agent and the
Lenders, the records of the Agent and the Lenders shall govern absent
manifest error.
2.05 The Swing Line Loans. Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make Swing Line Loans to the
Company from time to time prior to the Revolving Termination Date in an
aggregate principal amount at any one time outstanding not to exceed
$15,000,000; provided, that after giving effect to any such Swing Line
Loan, the Effective Amount of all Revolving Loans, Swing Line Loans and
L/C Obligations at such time would not exceed the Aggregate Revolving Loan
Commitment at such time. Prior to the Revolving Termination Date, the
Company may use the Swing Line Commitment by borrowing, prepaying the
Swing Line Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. All Swing Line Loans shall bear
interest at the Swing Line Rate and shall not be entitled to be converted
into Loans that bear interest at any other rate.
2.06 Procedure for Swing Line Loans. (a) The Company may borrow
under the Swing Line Commitment on any Business Day until the Revolving
Termination Date; provided, that the Company shall give the Swing Line
Lender irrevocable written notice signed by a Responsible Officer or an
authorized designee (which notice must be received by the Swing Line
Lender prior to 11:00 a.m. (Chicago time)) with a copy to the Agent
specifying the amount of the requested Swing Line Loan, which shall be in
a minimum amount of $100,000 or a whole multiple of $100,000 in excess
thereof. The proceeds of the Swing Line Loan will be made available by
the Swing Line Lender to the Company in immediately available funds at the
office of the Swing Line Lender by 1:00 p.m. (Chicago time) on the date of
such notice. The Company may at any time and from time to time, prepay
the Swing Line Loans, in whole or in part, without premium or penalty, by
notifying the Swing Line Lender prior to 11:00 a.m. (Chicago time) on any
Business Day of the date and amount of prepayment with a copy to the
Agent. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Partial
prepayments shall be in an aggregate principal amount of $100,000 or a
whole multiple of $100,000 in excess thereof.
(b) If any Swing Line Loan shall remain outstanding at 11:00
a.m. (Chicago time) on the fifth Business Day following the date of such
Swing Line Loan and if by such time on such fifth Business Day the Agent
shall have received neither (i) a Notice of Borrowing delivered by the
Company pursuant to Section 2.03 requesting that Revolving Loans be made
pursuant to subsection 2.01(d) on the immediately succeeding Business Day
in an amount at least equal to the principal amount of such Swing Line
Loan nor (ii) any other notice satisfactory to the Agent indicating the
Company's intent to repay such Swing Line Loan on or before the
immediately succeeding Business Day with funds obtained from other
sources, then on such Business Day the Swing Line Lender shall (and on any
Business Day the Swing Line Lender in its sole discretion may), on behalf
of the Company (which hereby irrevocably directs the Swing Line Lender to
act on its behalf) request the Agent to notify each Revolving Lender to
make a Base Rate Loan in an amount equal to such Revolving Lender's Pro
Rata Revolving Share of (A) in the case of such a request which is
required to be made, the amount of the relevant Swing Line Loan and (B) in
the case of such a discretionary request, the aggregate principal amount
of the Swing Line Loans outstanding on the date such notice is given;
provided, that absent notice by the Company to the contrary by such time
on such fifth Business Day, the Company shall be deemed to have requested,
at the end of such five Business Day period, that each outstanding Swing
Line Loan be extended for an additional period of five Business Days, so
long as the conditions specified in Section 5.02 would be satisfied at the
beginning of each such additional period, treating each such extension as
if it were the making of a new Loan. Unless any of the events described
in subsection 9.01(f) or (g) shall have occurred with respect to the
Company (in which event the procedures of paragraph (d) of this Section
2.06 shall apply) each Revolving Lender shall make the proceeds of its
Revolving Loan available to the Agent for the account of the Swing Line
Lender at the Agent's Payment Office in funds immediately available prior
to 1:00 p.m. (Chicago time) on the Business Day next succeeding the date
such notice is given. The proceeds of such Revolving Loans shall be
immediately applied to repay the outstanding Swing Line Loans. Effective
on the day such Revolving Loans are made, the portion of the Swing Line
Loans so paid shall no longer be outstanding as Swing Line Loans and shall
no longer be due under the Swing Line Note. The Company shall pay to the
Swing Line Lender, promptly following the Swing Line Lender's demand, the
amount of its outstanding Swing Line Loans to the extent amounts received
from the Revolving Lenders are not sufficient to repay in full such
outstanding Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, the
Swing Line Lender (i) shall not be obligated to make any Swing Line Loan
if the conditions set forth in Article V have not been satisfied and (ii)
shall not make any requested Swing Line Loan if, prior to 11:00 a.m.
(Chicago time) on the date of such requested Swing Line Loan, it has
received a written notice from the Agent or any Revolving Lender directing
it not to make further Swing Line Loans because one or more of the
conditions specified in Article V are not then satisfied.
(d) If prior to the making of a Revolving Loan required to be
made by subsection 2.06(b) an Event of Default described in subsection
9.01(f) or 9.01(g) shall have occurred and be continuing with respect to
the Company, each Revolving Lender will, on the date such Revolving Loan
was to have been made pursuant to the notice described in subsection
2.06(b), purchase an undivided participating interest in the outstanding
Swing Line Loans in an amount equal to its Pro Rata Revolving Share of the
aggregate principal amount of Swing Line Loans then outstanding. Each
Revolving Lender will immediately transfer to the Agent for the benefit of
the Swing Line Lender, in immediately available funds, the amount of its
participation.
(e) Whenever, at any time after a Revolving Lender has
purchased a participating interest in a Swing Line Loan, the Swing Line
Lender receives any payment on account thereof, the Swing Line Lender will
distribute to the Agent for delivery to each Revolving Lender its
participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such
Revolving Lender's participating interest was outstanding and funded);
provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Lender will
return to the Agent for delivery to the Swing Line Lender any portion
thereof previously distributed by the Swing Line Lender to it.
(f) Each Lender's obligation to make the Revolving Loans
referred to in subsection 2.06(b) and to purchase participating interests
pursuant to subsection 2.06(d) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation,
(i) any set-off, counterclaim, recoupment, defense or other right which
such Revolving Lender or the Company may have against the Swing Line
Lender, the Company or any other Person for any reason whatsoever, (ii)
the occurrence or continuance of a Default or an Event of Default, (iii)
any adverse change in the condition (financial or otherwise) of the
Company, (iv) any breach of this Agreement or any other Loan Document by
the Company, any Subsidiary or any other Lender, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
2.07 Voluntary Termination or Reduction of Revolving Loan
Commitments. (a) The Company may, upon not less than five Business Days'
prior notice to the Agent, terminate the Revolving Loan Commitments, or
permanently reduce the Revolving Loan Commitments by an aggregate minimum
amount of $10,000,000 or any multiple of $1,000,000 in excess thereof;
unless, after giving effect thereto and to any prepayments of Loans made
on the effective date thereof, (a) the Effective Amount of all Revolving
Loans, Swing Line Loans and L/C Obligations together would exceed the
amount of the Aggregate Revolving Loan Commitment then in effect, or (b)
the Effective Amount of all L/C Obligations then outstanding would exceed
the L/C Commitment. Once reduced in accordance with this Section, the
Revolving Loan Commitments may not be increased. Any reduction of the
Revolving Loan Commitments shall be applied to each Revolving Lender
according to its Pro Rata Revolving Share. All accrued commitment and
letter of credit fees to, but not including, the effective date of any
reduction or termination of Revolving Loan Commitments, shall be paid on
the effective date of such reduction or termination.
(b) At no time shall the Swing Line Commitment exceed the
Aggregate Revolving Loan Commitment, and any reduction of the Aggregate
Revolving Loan Commitment which reduces the Aggregate Revolving Loan
Commitment below the then-current amount of the Swing Line Commitment
shall result in an automatic corresponding reduction of the Swing Line
Commitment to the amount of the Aggregate Revolving Loan Commitment, as so
reduced, without any action on the part of the Swing Line Lender. At no
time shall the Swing Line Commitment exceed the Revolving Loan Commitment
of the Swing Line Lender, and any reduction of the Aggregate Revolving
Loan Commitment which reduces the Revolving Loan Commitment of the Swing
Line Lender below the then-current amount of the Swing Line Commitment
shall result in an automatic corresponding reduction of the Swing Line
Commitment to the amount of the Revolving Loan Commitment of the Swing
Line Lender, as so reduced, without any action on the part of the Swing
Line Lender.
2.08 Optional Prepayments. Subject to Section 4.04, the Company
may, at any time or from time to time, upon not less than two (2) Business
Days' irrevocable notice to the Agent, in respect of Offshore Rate Loans,
and in respect of Base Rate Loans, by not later than 10:30 a.m. (Chicago
time) on the prepayment date, prepay Loans in whole or in part, in minimum
amounts of $3,000,000 or any multiple of $250,000 in excess thereof. Such
notice of prepayment shall specify the date and amount of such prepayment,
which Loans are to be prepaid and the Type(s) of such Loans to be prepaid.
The Agent will promptly notify each Lender of its receipt of any such
notice, and of such Lender's Pro Rata Share of such prepayment. If such
notice is given by the Company, the Company shall make such prepayment and
the payment amount specified in such notice shall be due and payable on
the date specified therein, together, in the case of Offshore Rate Loans,
with accrued interest to each such date on the amount prepaid and any
amounts required pursuant to Section 4.04. Optional prepayments of any
Term Loan shall be applied first, in the order of maturity, to payments
due on such Term Loan in the next 12 months, and then ratably to all
remaining payments on such Term Loan.
2.09 Mandatory Prepayments of Loans. (a) If on any date the
Effective Amount of L/C Obligations exceeds the L/C Commitment, the
Company shall Cash Collateralize on such date the outstanding Letters of
Credit in an amount equal to the excess of the maximum amount then
available to be drawn under the Letters of Credit over the Aggregate L/C
Commitment. Subject to Section 4.04, if on any date after giving effect
to any Cash Collateralization made on such date pursuant to the preceding
sentence, the Effective Amount of all Revolving Loans, Swing Line Loans
and Term Loans then outstanding plus the Effective Amount of all L/C
Obligations exceeds the Aggregate Commitment, the Company shall
immediately, and without notice or demand, prepay the outstanding
principal amount of the Revolving Loans and L/C Advances by an amount
equal to the applicable excess.
(b) On each January 15, beginning January 15, 1999, the
Company shall prepay the Term Loans in an amount equal to fifty percent
(50%) of the Excess Cash Flow, if any, generated by the Company and its
Subsidiaries during the immediately preceding fiscal year of the Company;
provided, that with respect to the payment to be made on January 15, 1999,
Excess Cash Flow shall be measured for the seven month period beginning on
March 1, 1998. The amount of such prepayment shall be applied (i) subject
to paragraphs (d) and (e) below, on a ratable basis among the then
outstanding Term Loans, and (ii) (A) to the extent paid in respect of
fiscal years 1998, 1999 and 2000, on a ratable basis among all remaining
payments in each such Term Loan, and (B) thereafter, 50% to the payments
due on such Term Loan, in the order of maturity, in the next 12 months (to
the extent required), with all remaining amounts to be applied on a
ratable basis among all remaining payments in each such Term Loan. Such
proceeds shall be applied first, to the extent possible, to prepay Base
Rate Loans and then to prepay Offshore Rate Loans. The Company shall use
its best efforts to notify the Agent and each Lender holding a Term Loan
of the amount of any required prepayment at least three (3) Business Days
before it is made.
(c) Within five (5) Business Days after the end of each
fiscal quarter, the Company shall prepay the Term Loans in an amount equal
to 100% of the sum of (a) the Net Proceeds realized upon all Asset
Dispositions made by the Company or any Subsidiary in such fiscal quarter,
(b) the insurance proceeds received by the Company or any Subsidiary in
such fiscal quarter following a casualty involving such Person's Property
and (c) the payments received by the Company or any Subsidiary in such
fiscal quarter from a condemnation of such Person's Property, aggregating
in excess of $250,000, to the extent not applied (or committed to be
applied) within 90 days after the consummation or receipt thereof, as
applicable, to the purchase of other assets that are not classified as
current assets under GAAP and are used or useful in the business of the
Company and its Subsidiaries. The amount of such prepayment shall be
applied (i) subject to paragraphs (d) and (e) below, on a ratable basis
among the then outstanding Term Loans, and (ii) on a ratable basis among
all remaining payments in each such Term Loan with such proceeds to be
applied first, to the extent possible, to prepay Base Rate Loans and then
to prepay Offshore Rate Loans. The Company shall use its best efforts to
notify the Agent and each Lender holding a Term Loan of the amount of any
required prepayment at least three (3) Business Days before it is made.
(d) Waiver of Certain Mandatory Prepayments by Term B
Lenders. Notwithstanding anything to the contrary contained in this
Section 2.09 or elsewhere in this Agreement, any Lender with an
outstanding Term Loan B shall have the option to waive a mandatory
prepayment of such Term Loan pursuant to subsection 2.09(b) or (c) (each
such prepayment, a "Waivable Mandatory Term Loan B Prepayment") upon the
terms and provisions set forth in this subsection 2.09(d). In the event
any such Lender desires to waive such Lender's right to receive any such
Waivable Mandatory Term Loan B Prepayment in whole or in part, such Lender
shall so advise the Agent no later than the close of business two (2)
Business Days prior to the date on which such prepayment is to occur,
which notice shall also include the amount such Lender desires to receive
in respect of such prepayment. If any such Lender does not provide such
notice by such date, it will be deemed not to have waived any part of such
prepayment. If any such Lender does not specify an amount it wishes to
receive, it will be deemed to have accepted one hundred percent (100%) of
the total payment. In the event that any such Lender waives all or part
of such right to receive any such Waivable Mandatory Term Loan B
Prepayment, the Agent shall apply one hundred percent (100%) of the amount
so waived by such Lender to Term Loan A in accordance with Section 2.09;
provided, that if the aggregate amount of the applicable prepayment
requested to be waived by such Lenders and by Lenders with an outstanding
Term Loan C would exceed the amount required to prepay Term Loan A in
full, then such requested waived amounts shall be allocated ratably among
the waiving Term Loan B Lenders and Term Loan C Lenders, based upon the
amounts of the requested waivers; provided, further, that no such waiver
requests shall be honored following the prepayment in full of Term Loan A.
(e) Waiver of Certain Mandatory Prepayments by Term C
Lenders. Notwithstanding anything to the contrary contained in this
Section 2.09 or elsewhere in this Agreement, any Lender with an
outstanding Term Loan C shall have the option to waive a mandatory
prepayment of such Term Loan pursuant to subsection 2.09(b) or (c) (each
such prepayment, a "Waivable Mandatory Term Loan C Prepayment") upon the
terms and provisions set forth in this subsection 2.09(d). In the event
any such Lender desires to waive such Lender's right to receive any such
Waivable Mandatory Term Loan C Prepayment in whole or in part, such Lender
shall so advise the Agent no later than the close of business two (2)
Business Days prior to the date on which such prepayment is to occur,
which notice shall also include the amount such Lender desires to receive
in respect of such prepayment. If any such Lender does not provide such
notice by such date, it will be deemed not to have waived any part of such
prepayment. If any such Lender does not specify an amount it wishes to
receive, it will be deemed to have accepted one hundred percent (100%) of
the total payment. In the event that any such Lender waives all or part
of such right to receive any such Waivable Mandatory Term Loan C
Prepayment, the Agent shall apply one hundred percent (100%) of the amount
so waived by such Lender to Term Loan A in accordance with Section 2.09;
provided, that if Term Loan A has been paid in full, or would be paid in
full after giving effect to all pending waiver requests, then any excess
waived amounts shall be applied to prepay Term Loan B; provided, further,
that if the aggregate amount requested to be waived by such Lenders and by
Lenders with an outstanding Term Loan B would exceed the amount required
to prepay Term Loan A (and following the prepayment in full of Term Loan
A, Term Loan B) in full, then such requested waived amounts shall be
allocated ratably among the waiving Term Loan B Lenders (to the extent
applicable) and Term Loan C Lenders, based upon the amounts of the
requested waivers; and provided, further, that no such waiver requests
shall be honored following the prepayment in full of Term Loan A and Term
Loan B.
2.10 Repayment. (a) Term Loans. The Company shall repay the Term
Loans on each date set forth below as follows (each a "Principal Payment
Date"):
Term Loan A Term Loan B Term Loan C Total
Date Payment Payment Payment Payment
6/30/98 $2,500,000 $156,250 $156,250 $2,812,500
9/30/98 $2,500,000 $156,250 $156,250 $2,812,500
12/31/98 $2,500,000 $156,250 $156,250 $2,812,500
3/31/99 $2,500,000 $156,250 $156,250 $2,812,500
6/30/99 $3,000,000 $156,250 $156,250 $3,312,500
9/30/99 $3,000,000 $156,250 $156,250 $3,312,500
12/31/99 $3,000,000 $156,250 $156,250 $3,312,500
3/31/00 $3,000,000 $156,250 $156,250 $3,312,500
6/30/00 $3,750,000 $156,250 $156,250 $4,062,500
9/30/00 $3,750,000 $156,250 $156,250 $4,062,500
12/31/00 $3,750,000 $156,250 $156,250 $4,062,500
3/31/01 $3,750,000 $156,250 $156,250 $4,062,500
6/30/01 $3,750,000 $156,250 $156,250 $4,062,500
9/30/01 $3,750,000 $156,250 $156,250 $4,062,500
12/31/01 $3,750,000 $156,250 $156,250 $4,062,500
3/31/02 $3,750,000 $156,250 $156,250 $4,062,500
6/30/02 $6,000,000 $156,250 $156,250 $6,312,500
9/30/02 $6,000,000 $156,250 $156,250 $6,312,500
12/31/02 $6,000,000 $156,250 $156,250 $6,312,500
3/31/03 $6,000,000 $156,250 $156,250 $6,312,500
6/30/03 $6,000,000 $156,250 $156,250 $6,312,500
9/30/03 $6,000,000 $156,250 $156,250 $6,312,500
12/31/03 $6,000,000 $156,250 $156,250 $6,312,500
3/31/04 $6,000,000 $156,250 $156,250 $6,312,500
or such
other amount
as shall
then be
outstanding
6/30/04 $14,687,500 $156,250 $14,843,750
9/30/04 $14,687,500 $156,250 $14,843,750
12/31/04 $14,687,500 $156,250 $14,843,750
3/31/05 $14,687,500 $156,250 $14,843,750
or such
other amount
as shall
then be
outstanding
6/30/05 $14,531,250 $14,531,250
9/30/05 $14,531,250 $14,531,250
12/31/05 $14,531,250 $14,531,250
3/31/06 $14,531,250 $14,531,250
or such other
amount as
shall then be
outstanding
======== =========== =========== ============ ============
Total $100,000,000 $62,500,000 $62,500,000 $225,000,000
(b) The Revolving Credit. The Company shall repay to the
Lenders on the Revolving Termination Date the aggregate principal amount
of Revolving Loans outstanding on such date.
2.11 Interest. (a) Each Revolving Loan and Term Loan shall bear
interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Offshore Rate or the Base
Rate, as the case may be (and subject to the Company's right to convert to
other Types of Loans under Section 2.04), plus the Applicable Offshore
Rate Margin or the Applicable Base Rate Margin, as applicable.
(b) Interest on each Revolving Loan and Term Loan shall be
paid in arrears on each Interest Payment Date. Interest on Base Rate
Loans shall also be paid on the date of any payment (including prepayment)
in full thereof. Interest on Offshore Rate Loans shall also be paid on
the date of any prepayment of Loans under Section 2.08 or 2.09 for the
portion of the Loans so prepaid and upon payment (including prepayment) in
full thereof. During the existence of any Event of Default, interest on
all Loans shall be paid on demand of the Agent at the request or with the
consent of the Required Lenders.
(c) Notwithstanding subsection (a) of this Section, if any
amount of principal of or interest on any Loan, or any other amount
payable hereunder or under any other Loan Document is not paid in full
when due (whether at stated maturity, by acceleration, demand or
otherwise), the Company agrees to pay interest on such unpaid principal or
other amount, from the date such amount becomes due until the date such
amount is paid in full, and after as well as before any entry of judgment
thereon to the extent permitted by law, payable on demand, at a
fluctuating rate per annum equal to the Base Rate, plus the Applicable
Base Rate Margin, plus two percent (2.0%).
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period
for which interest is computed hereunder, to the extent (but only to the
extent) that contracting for or receiving such payment by such Lender
would be contrary to the provisions of any law applicable to such Lender
limiting the highest rate of interest that may be lawfully contracted for,
charged or received by such Lender, and in such event the Company shall
pay such Lender interest at the highest rate permitted by applicable law.
2.12 Fees. In addition to certain fees described in Section 3.08:
(a) Arrangement, Agency Fees. The Company shall pay such
fees to the Agent and the Arranger as are required by the letter agreement
("Fee Letter") between the Company and the Arranger and Agent dated
November 21, 1997.
(b) Commitment Fees. The Company shall pay to the Agent for
the account of each Revolving Lender a commitment fee on the average daily
unused portion of such Revolving Lender's Loan Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar
quarter based upon the daily utilization for that quarter as calculated by
the Agent, equal to the Applicable Commitment Fee Percentage. For
purposes of calculating utilization under this subsection, the Revolving
Loan Commitments shall be deemed used to the extent of the Effective
Amount of Revolving Loans then outstanding (excluding any outstanding
Swing Line Loans), plus the Effective Amount of L/C Obligations then
outstanding. Such commitment fee shall accrue from the date hereof to the
Revolving Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter commencing on
March 31, 1998 through the Revolving Termination Date, with the final
payment to be made on the Revolving Termination Date; provided that, in
connection with any reduction or termination of Revolving Loan Commitments
under Section 2.05 or Section 2.07, the accrued commitment fee calculated
for the period ending on such date shall also be paid on the date of such
reduction or termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or termination
date to such quarterly payment date. The commitment fees provided in this
subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more
conditions in Article V are not met.
2.13 Computation of Fees and Interest. (a) All computations of
interest for Base Rate Loans when the Base Rate is determined by BofA's
"reference rate" shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. All other computations of
fees and interest shall be made on the basis of a 360-day year and actual
days elapsed (which results in more interest being paid than if computed
on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first
day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall
be conclusive and binding on the Company and the Lenders in the absence of
manifest error.
2.14 Payments by the Company. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except
as otherwise expressly provided herein, all payments by the Company shall
be made to the Agent for the account of the Lenders at the Agent's Payment
Office, and shall be made in dollars and in immediately available funds,
no later than 11:00 a.m. (Chicago time) on the date specified herein. The
Agent will promptly distribute to each Lender its applicable share of such
payment in like funds as received which, except as otherwise expressly
provided herein, shall be based upon such Lender's Pro Rata Share of the
Loans in respect of which such prepayment has been made. Any payment
received by the Agent later than 1:00 p.m. (Chicago time) shall be deemed
to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than
a Business Day, such payment shall be made on the following Business Day,
and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior
to the date on which any payment is due to the Lenders that the Company
will not make such payment in full as and when required, the Agent may
assume that the Company has made such payment in full to the Agent on such
date in immediately available funds and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each Lender on
such due date an amount equal to the amount then due such Lender. If and
to the extent the Company has not made such payment in full to the Agent,
each Lender shall repay to the Agent on demand such amount distributed to
such Lender, together with interest thereon at the Federal Funds Rate for
each day from the date such amount is distributed to such Lender until the
date repaid.
2.15 Payments by the Lenders to the Agent. (a) Unless the Agent
receives notice from a Lender on or prior to the Closing Date or, with
respect to any Borrowing after the Closing Date, at least one Business Day
prior to the date of such Borrowing, that such Lender will not make
available as and when required hereunder to the Agent for the account of
the Company the amount of that Lender's Pro Rata Share of the Borrowing,
the Agent may assume that each Lender has made such amount available to
the Agent in immediately available funds on the Borrowing Date and the
Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Lender shall not have made its full
amount available to the Agent in immediately available funds and the Agent
in such circumstances has made available to the Company such amount, that
Lender shall on the Business Day following such Borrowing Date make such
amount available to the Agent, together with interest at the Federal Funds
Rate for each day during such period. A notice of the Agent submitted to
any Lender with respect to amounts owing under this subsection (a) shall
be conclusive, absent manifest error. If such amount is so made
available, such payment to the Agent shall constitute such Lender's Loan
on the date of Borrowing for all purposes of this Agreement. If such
amount is not made available to the Agent on the Business Day following
the Borrowing Date, the Agent will notify the Company of such failure to
fund and, upon demand by the Agent, the Company shall pay such amount to
the Agent for the Agent's account, together with interest thereon for each
day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such
Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any obligation
hereunder to make a Loan on such Borrowing Date, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be
made by such other Lender on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Lender shall obtain on account of the Loans
made by it any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its ratable
share (or other share contemplated hereunder), such Lender shall
immediately (a) notify the Agent of such fact, and (b) purchase from the
other Lenders such participations in the Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment pro
rata with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from the purchasing Lender,
such purchase shall to that extent be rescinded and each other Lender
shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's
required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The
Company agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to Section
11.10) with respect to such participation as fully as if such Lender were
the direct creditor of the Company in the amount of such participation.
The Agent will keep records (which shall be conclusive and binding in the
absence of manifest error) of participations purchased under this Section
and will in each case notify the Lenders following any such purchases or
repayments.
2.17 Security and Subsidiary Guaranty. (a) All obligations of
the Company and the Guarantors under this Agreement, the Notes and all
other Loan Documents shall be secured in accordance with the Collateral
Documents.
(b) All obligations of the Company under this Agreement, each
of the Notes and all other Loan Documents shall be unconditionally
guaranteed by the Guarantors pursuant to the Subsidiary Guaranty.
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility. (a) On the terms and
conditions set forth herein (i) the Issuer agrees, (A) from time to time
on any Business Day, during the period from the Closing Date to the day
which is five days prior to the Revolving Termination Date, to issue
Letters of Credit for the account of the Company in an aggregate Stated
Amount in Dollars or any Offshore Currency at any one time that, the
Dollar Equivalent of which, together with the aggregate Dollar Equivalent
of the Stated Amount of all other outstanding Letters of Credit issued
pursuant hereto, does not exceed the L/C Commitment, and to amend or renew
Letters of Credit previously issued by it, in accordance with subsections
3.02(c) and 3.02(d), and (B) to honor drafts under the Letters of Credit;
and (ii) the Lenders severally agree to participate in Letters of Credit
Issued for the account of the Company; provided, that the Issuer shall not
be obligated to Issue, and no Revolving Lender shall be obligated to
participate in, any Letter of Credit if as of the date of Issuance of such
Letter of Credit (the "Issuance Date") (1) the Dollar Equivalent of the
Effective Amount of all L/C Obligations plus the Effective Amount of all
Revolving Loans and of all Swing Line Loans exceeds the Aggregate
Revolving Loan Commitment, (2) the participation of any Lender in the
Dollar Equivalent of the Effective Amount of all L/C Obligations plus the
Effective Amount of the Revolving Loans of such Lender and such Revolving
Lender's Pro Rata Revolving Share of any outstanding Swing Line Loans
exceeds such Lender's Commitment, or (3) the Effective Amount of L/C
Obligations exceeds the L/C Commitment. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Company's ability to
obtain Letters of Credit shall be fully revolving, and, accordingly, the
Company may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit which have expired or which have been drawn upon
and reimbursed.
(b) The Issuer is under no obligation to, and shall not,
Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuer from Issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuer shall
prohibit, or request that the Issuer refrain from, the Issuance of
letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which
the Issuer is not otherwise compensated hereunder) not in effect on
the Closing Date, or shall impose upon the Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing Date
and which the Issuer in good faith deems material to it;
(ii) the Issuer has received written notice from any
Revolving Lender, the Agent or the Company, on or prior to the
Business Day prior to the requested date of Issuance of such Letter
of Credit, that one or more of the applicable conditions contained
in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is (A) more than 720 days after the date of Issuance, unless
the Required Revolving Lenders have approved such expiry date in
writing, or (B) after the date which is five days prior to the
Revolving Termination Date, unless all of the Revolving Lenders
have approved such expiry date in writing;
(iv) the expiry date of any requested Letter of
Credit is prior to the maturity date of any financial obligation to
be supported by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the
Issuer, or the Issuance of a Letter of Credit shall violate any
applicable policies of the Issuer; or
(vi) such Letter of Credit is to be denominated in a
currency other than Dollars or any Offshore Currency.
3.02 Issuance, Amendment and Renewal of Letters of Credit. (a)
Each Letter of Credit shall be issued upon the irrevocable written request
of the Company received by the Issuer (with a copy sent by the Company to
the Agent) at least three days (or such shorter time as the Issuer may
agree in a particular instance in its sole discretion) prior to the
proposed date of issuance; provided, that five days' prior notice (or such
shorter time as the Issuer may agree in a particular instance in its sole
discretion) shall be required in respect of each Letter of Credit to be
denominated in an Offshore Currency. Each such request for issuance of a
Letter of Credit shall be by facsimile, confirmed immediately in an
original writing, in the form of an L/C Application (or such other form as
shall be acceptable to the Issuer), and shall specify in form and detail
satisfactory to the Issuer: (i) the proposed date of issuance of the
Letter of Credit (which shall be a Business Day); (ii) the face amount of
the Letter of Credit; (iii) the expiry date of the Letter of Credit; (iv)
the name and address of the beneficiary thereof; (v) the documents to be
presented by the beneficiary of the Letter of Credit in case of any
drawing thereunder; (vi) the full text of any certificate to be presented
by the beneficiary in case of any drawing thereunder; (vii) the currency
in which such Letter of Credit is to be denominated, which shall be
Dollars or an Offshore Currency; and (viii) such other matters as the
Issuer may require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit (or such shorter time as the Agent may agree in a
particular instance in its sole discretion), the Issuer will confirm with
the Agent (by telephone or in writing) that the Agent has received a copy
of the L/C Application or L/C Amendment Application from the Company and,
if not, the Issuer will provide the Agent with a copy thereof. Unless the
Issuer has received notice on or before the Business Day immediately
preceding the date the Issuer is to issue a requested Letter of Credit
from the Agent (A) directing the Issuer not to issue such Letter of Credit
because such issuance is not then permitted under subsection 3.01(a) as a
result of the limitations set forth in clauses (1) through (3) thereof or
subsection 3.01(b)(ii); or (B) that one or more conditions specified in
Article V are not then satisfied; then, subject to the terms and
conditions hereof, the Issuer shall, on the requested date, issue a Letter
of Credit for the account of the Company in accordance with the Issuer's
usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Revolving Termination Date, the Issuer will, upon the
written request of the Company received by the Issuer (with a copy sent by
the Company to the Agent) at least three days (or such shorter time as the
Issuer may agree in a particular instance in its sole discretion) prior to
the proposed date of amendment, amend any Letter of Credit issued by it.
Each such request for amendment of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, made in the form
of an L/C Amendment Application and shall specify in form and detail
satisfactory to the Issuer: (i) the Letter of Credit to be amended; (ii)
the proposed date of amendment of the Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such
other matters as the Issuer may require. The Issuer shall be under no
obligation to amend any Letter of Credit if: (A) the Issuer would have no
obligation at such time to issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of any such
letter of Credit does not accept the proposed amendment to the Letter of
Credit. The Agent will promptly notify the Revolving Lenders of the
receipt by it of any L/C Application or L/C Amendment Application.
(d) The Issuer and the Lenders agree that, while a Letter of
Credit is outstanding and prior to the Revolving Termination Date, at the
option of the Company and upon the written request of the Company received
by the Issuer (with a copy sent by the Company to the Agent) at least
three days (or such shorter time as the Issuer may agree in a particular
instance in its sole discretion) prior to the proposed date of
notification of renewal, the Issuer shall be entitled to authorize the
automatic renewal of any Letter of Credit issued by it. Each such request
for renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment
Application, and shall specify in form and detail satisfactory to the
Issuer: (i) the Letter of Credit to be renewed; (ii) the proposed date of
notification of renewal of the Letter of Credit (which shall be a Business
Day); (iii) the revised expiry date of the Letter of Credit; and (iv) such
other matters as the Issuer may require. The Issuer shall be under no
obligation so to renew any Letter of Credit if: (A) the Issuer would have
no obligation at such time to issue or amend such Letter of Credit in its
renewed form under the terms of this Agreement; or (B) the beneficiary of
any such Letter of Credit does not accept the proposed renewal of the
Letter of Credit. If any outstanding Letter of Credit shall provide that
it shall be automatically renewed unless the beneficiary thereof receives
notice from the Issuer that such Letter of Credit shall not be renewed,
and if at the time of renewal the Issuer would be entitled to authorize
the automatic renewal of such Letter of Credit in accordance with this
subsection 3.02(e) upon the request of the Company but the Issuer shall
not have received any L/C Amendment Application from the Company with
respect to such renewal or other written direction by the Company with
respect thereto, the Issuer shall nonetheless be permitted to allow such
Letter of Credit to renew, and the Company and the Lenders hereby
authorize such renewal, and, accordingly, the Issuer shall be deemed to
have received an L/C Amendment Application from the Company requesting
such renewal.
(e) The Issuer may, at its election (or as required by the
Agent at the direction of the Required Revolving Lenders), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the
expiry date of such Letter of Credit to be a date not later than the date
which is five days prior to the Revolving Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuer will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or
amendment to or renewal of a Letter of Credit.
3.03 Risk Participations, Drawings and Reimbursements. (a)
Immediately upon the Issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuer a participation in such Letter of
Credit and each drawing thereunder in an amount equal to the product of
(i) the Pro Rata Revolving Share of such Revolving Lender, times (ii) the
Dollar Equivalent of the maximum amount available to be drawn under such
Letter of Credit and the amount of such drawing, respectively. For
purposes of subsection 2.01(d), each Issuance of a Letter of Credit shall
be deemed to utilize the Revolving Loan Commitment of each Revolving
Lender by an amount equal to the amount of such participation.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuer will
promptly notify the Company. The Company shall reimburse the Issuer prior
to 11:00 a.m. (Chicago time), on each date that any amount is paid by the
Issuer under any Letter of Credit (each such date, an "Honor Date"), in an
amount in Dollars equal to the Dollar Equivalent of the amount so paid by
the Issuer. In the event the Company fails to reimburse the Issuer in
Dollars for the Dollar Equivalent of the full amount of any drawing under
any Letter of Credit by 11:00 a.m. (Chicago time) on the Honor Date, the
Issuer will promptly notify the Agent and the Agent will promptly notify
each Lender thereof, and the Company shall be deemed to have requested
that Base Rate Loans in an amount equal to such unreimbursed amount be
made by the Revolving Lenders to be disbursed on the Honor Date under such
Letter of Credit, subject to the amount of the unutilized portion of the
Aggregate Revolving Loan Commitment and subject to the conditions set
forth in Section 5.02. Any notice given by the Issuer or the Agent
pursuant to this subsection 3.03(b) may be oral if immediately confirmed
in writing (including by facsimile); provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(c) Each Revolving Lender shall upon any notice pursuant to
subsection 3.03(b) make available to the Agent for the account of the
relevant Issuer an amount in Dollars and in immediately available funds
equal to its Pro Rata Revolving Share of the Dollar Equivalent of the
amount of the drawing, whereupon the participating Revolving Lenders shall
(subject to subsection 3.03(d)) each be deemed to have made a Revolving
Loan consisting of a Base Rate Loan to the Company in that amount. If any
Revolving Lender so notified fails to make available to the Agent for the
account of the Issuer the amount of such Revolving Lender's Pro Rata Share
of the Dollar Equivalent of the amount of the drawing by no later than
12:00 noon (Chicago time) on the Honor Date, then interest shall accrue on
such Revolving Lender's obligation to make such payment, from the Honor
Date to the date such Revolving Lender makes such payment, at a rate per
annum equal to the Federal Funds Rate in effect from time to time during
such period. The Agent will promptly give notice of the occurrence of the
Honor Date, but failure of the Agent to give any such notice on the Honor
Date or in sufficient time to enable any Revolving Lender to effect such
payment on such date shall not relieve such Revolving Lender from its
obligations under this Section 3.03.
(d) With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans to the
Company in whole or in part, because of the Company's failure to satisfy
the conditions set forth in Section 5.02 or for any other reason, the
Company shall be deemed to have incurred from the Issuer an L/C Borrowing
in the Dollar Equivalent of the amount of such drawing, which L/C
Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at a rate per annum equal to the Base Rate, plus the
Applicable Base Rate Margin, plus 2.0% per annum, and each Revolving
Lender's payment to the Issuer pursuant to subsection 3.03(c) shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Revolving Lender in satisfaction
of its participation obligation under this Section 3.03.
(e) Each Revolving Lender's obligation in accordance
with this Agreement to make the Revolving Loans or L/C Advances, as
contemplated by this Section 3.03, as a result of a drawing under a Letter
of Credit, shall be absolute and unconditional and without recourse to the
Issuer and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such
Revolving Lender may have against the Issuer, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default, an Event of Default or a Material Adverse Effect; or (iii) any
other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing; provided, however, that each Revolving Lender's
obligation to make Revolving Loans under this Section 3.03 is subject to
the conditions set forth in Section 5.02.
3.04 Repayment of Participations. (a) Upon (and only upon)
receipt by the Agent for the account of the Issuer of immediately
available funds in Dollars from the Company (i) in reimbursement of any
payment made by the Issuer under the Letter of Credit with respect to
which any Revolving Lender has paid the Agent for the account of the
Issuer for such Revolving Lender's participation in the Letter of Credit
pursuant to Section 3.03 or (ii) in payment of interest thereon, the Agent
will promptly pay to each Revolving Lender, in the same funds as those
received by the Agent for the account of the Issuer, the amount of such
Revolving Lender's Pro Rata Revolving Share of such funds, and the Issuer
shall receive the amount of the Pro Rata Revolving Share of such funds of
any Revolving Lender that did not so pay the Agent for the account of the
Issuer.
(b) If the Agent or the Issuer is required at any time to
return to the Company, or to a trustee, receiver, liquidator, custodian,
or any official in any Insolvency Proceeding, any portion of the payments
made by the Company to the Agent for the account of the Issuer pursuant to
subsection 3.04(a) in reimbursement of a payment made under the Letter of
Credit or interest or fee thereon, each Revolving Lender shall, on demand
of the Agent, forthwith return to the Agent or the Issuer the amount of
its Pro Rata Revolving Share of any amounts so returned by the Agent or
the Issuer plus interest thereon from the date such demand is made to the
date such amounts are returned by such Revolving Lender to the Agent or
the Issuer, at a rate per annum equal to the Federal Funds Rate in effect
from time to time.
3.05 Role of the Issuer. (a) Each Lender and the Company agree
that, in paying any drawing under a Letter of Credit, the Issuer shall not
have any responsibility to obtain any document (other than any sight draft
and certificates expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document
or the authority of the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuer shall be liable to
any Lender for: (i) any action taken or omitted in connection herewith at
the request or with the approval of the Lenders (including the Required
Lenders or Required Revolving Lenders, as applicable); (ii) any action
taken or omitted in the absence of gross negligence or willful misconduct;
or (iii) the due execution, effectiveness, validity or enforceability of
any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Company's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or
under any other agreement. No Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the Issuer, shall
be liable or responsible for any of the matters described in clauses (i)
through (vii) of Section 3.06; provided, however, anything in such clauses
to the contrary notwithstanding, that the Company may have a claim against
the Issuer, and the Issuer may be liable to the Company, to the extent,
but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Company which the Company proves were
caused by the Issuer's willful misconduct or gross negligence or the
Issuer's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit.
In furtherance and not in limitation of the foregoing: (i) the Issuer may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuer shall not be responsible
for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
3.06 Obligations Absolute. The obligations of the Company under
this Agreement and any L/C-Related Document to reimburse the Issuer for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any
drawing under a Letter of Credit converted into Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement and each such other L/C-Related Document
under all circumstances, including the following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations
of the Company in respect of any Letter of Credit or any other
amendment or waiver of or any consent to departure from all or any
of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that the Company may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by the L/C-
Related Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit;
(v) any payment by the Issuer under any Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any
payment made by the Issuer under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in
connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the
obligations of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available
to, or a discharge of, the Company or a guarantor.
3.07 Cash Collateral Pledge. Upon (i) the request of the Agent,
(A) if the Issuer has honored any full or partial drawing request on any
Letter of Credit and such drawing has resulted in an L/C Borrowing
hereunder, or (B) if, as of the Revolving Termination Date, any Letters of
Credit may for any reason remain outstanding and partially or wholly
undrawn, (ii) the occurrence of the circumstances described in subsection
2.09(a) requiring the Company to Cash Collateralize Letters of Credit, or
(iii) the termination of the Aggregate Commitment, then, the Company shall
immediately Cash Collateralize the L/C Obligations in an amount in Dollars
equal to the Dollar Equivalent of the L/C Obligations.
3.08 Letter of Credit Fees. (a) The Company shall pay to the
Agent for the account of each of the Revolving Lenders a letter of credit
fee with respect to the Letters of Credit equal to the Applicable Offshore
Rate Margin for Revolving Loans times the Dollar Equivalent of the average
daily maximum amount available to be drawn of the outstanding Letters of
Credit, computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter based upon Letters of Credit outstanding for that
quarter as calculated by the Agent. Such letter of credit fees shall be
due and payable quarterly in arrears on the last Business Day of each
calendar quarter during which Letters of Credit are outstanding,
commencing on the first such quarterly date to occur after the Closing
Date, through the Revolving Termination Date (or such later date upon
which the outstanding Letters of Credit shall expire), with the final
payment to be made on the Revolving Termination Date (or such later
expiration date).
(b) The Company shall pay to the Issuer an annual letter
of credit fronting fee for each Letter of Credit in an amount to be agreed
by the Company and the applicable Issuer. Such Letter of Credit fronting
fee shall be due and payable on each date of Issuance of a Letter of
Credit.
(c) The Company shall pay to the applicable Issuer from
time to time on demand the normal issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of such
Issuer relating to letters of credit as from time to time in effect.
3.09 Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber
of Commerce most recently at the time of issuance of any Letter of Credit
shall (unless otherwise expressly provided in the Letters of Credit) apply
to the Letters of Credit.
3.10 Utilization of Offshore Currencies. (a) The Agent will
determine the Dollar Equivalent amount with respect to (i) any Letter of
Credit denominated in an Offshore Currency as of the requested issuance
date, and (ii) outstanding Letters of Credit denominated in an Offshore
Currency as of the last Business Day of each month (each such date under
clauses (i) and (ii) a "Computation Date"). The Agent will provide the
Company with the amount determined pursuant to clause (ii) promptly
following the end of each month.
(b) In the case of a proposed Issuance of a Letter of Credit
denominated in an Offshore Currency, the applicable Issuer shall be under
no obligation to issue such Letter of Credit if the applicable Issuer
cannot issue Letters of Credit denominated in the requested Offshore
Currency, in which event the Issuer will give notice to the Company no
later than 10:30 a.m. (Chicago time) on the third Business Day prior to
the date of such issuance that the Issuance in the requested Offshore
Currency is not then available. If the applicable Issuer shall have so
notified the Company that any such Issuance in a requested Offshore
Currency is not then available, the Company may, by notice to the
applicable Issuer not later than 5:00 p.m. (Chicago time) three Business
Days prior to the requested date of such Issuance, withdraw the L/C
Application relating to such proposed Issuance. If the Company does so
withdraw such L/C Application, the Issuance requested therein shall not
occur. If the Company does not so withdraw such L/C Application, the L/C
Application shall be deemed to be an L/C Application for a Letter of
Credit denominated in Dollars in an equivalent aggregate amount.
3.11 Currency Exchange Fluctuations. If on any Computation Date
the Agent shall have determined that the aggregate Dollar Equivalent
principal amount of all Revolving Loans then outstanding plus the
aggregate amount of outstanding L/C Obligations exceeds the Aggregate
Revolving Credit Commitment, due to a change in applicable rates of
exchange between Dollars and Offshore Currencies, then the Agent shall
give notice to the Company that a prepayment is required under this
Section, and the Company agrees thereupon to make prepayments of Revolving
Loans, subject to Section 4.04, such that, after giving effect to such
prepayment, the aggregate Dollar Equivalent amount of all Revolving Loans
plus the aggregate amount of outstanding L/C Obligations does not exceed
the Aggregate Revolving Credit Commitment.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes. (a) Any and all payments by the Company to each
Lender or the Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any
Taxes. In addition, the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any
sum payable hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional
sums payable under this Section), such Lender or the Agent, as the
case may be, receives and retains an amount equal to the sum it
would have received and retained had no such deductions or
withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Company shall also pay to each Lender or
the Agent for the account of such Lender, at the time interest is
paid, Further Taxes in the amount that the respective Lender
specifies as necessary to preserve the after-tax yield the Lender
would have received if such Taxes, Other Taxes or Further Taxes had
not been imposed.
(c) The Company agrees to indemnify and hold harmless each
Lender and the Agent for the full amount of (i) Taxes, (ii) Other Taxes,
and (iii) Further Taxes in the amount that the respective Lender specifies
as necessary to preserve the after-tax yield the Lender would have
received if such Taxes, Other Taxes or Further Taxes had not been imposed,
and any liability (including penalties (except to the extent arising from
the gross negligence or willful misconduct of the Agent or such Lender),
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall
be made within 30 days after the date the Lender or the Agent makes
written demand therefor.
(d) Within 30 days after the date of any payment by the
Company of Taxes, Other Taxes or Further Taxes, the Company shall furnish
to each Lender or the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to
such Lender or the Agent.
(e) If the Company is required to pay any amount to any
Lender or the Agent pursuant to subsection (b) or (c) of this Section,
then such Lender shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office
so as to eliminate any such additional payment by the Company which may
thereafter accrue, if such change in the sole judgment of such Lender is
not otherwise disadvantageous to such Lender.
4.02 Illegality. (a) If any Lender determines that the
introduction of any Requirement of Law, or any change in any Requirement
of Law, or in the interpretation or administration of any Requirement of
Law, has made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make Offshore Rate Loans, then, on notice
thereof by the Lender to the Company through the Agent, any obligation of
that Lender to make Offshore Rate Loans shall be suspended until the
Lender notifies the Agent and the Company that the circumstances giving
rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain
any Offshore Rate Loan, the Company shall, upon its receipt of notice of
such fact and demand from such Lender (with a copy to the Agent), prepay
in full such Offshore Rate Loans of that Lender then outstanding, together
with interest accrued thereon and amounts required under Section 4.04,
either on the last day of the Interest Period thereof, if the Lender may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Lender may not lawfully continue to maintain such
Offshore Rate Loan. If the Company is required to so prepay any Offshore
Rate Loan, then concurrently with such prepayment, the Company shall
borrow from the affected Lender, in the amount of such repayment, a Base
Rate Loan.
(c) If the obligation of any Lender to make or maintain
Offshore Rate Loans has been so terminated or suspended, the Company may
elect, by giving notice to the Lender through the Agent that all Loans
which would otherwise be made by the Lender as Offshore Rate Loans shall
be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Lender shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the judgment
of the Lender, be illegal or otherwise disadvantageous to the Lender.
4.03 Increased Costs and Reduction of Return. (a) If any Lender
determines that, due to either (i) the introduction of or any change
(other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the Offshore Rate) in or in
the interpretation of any law or regulation or (ii) the compliance by that
Lender with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any Offshore Rate Loans or participating in
Letters of Credit, or, in the case of the Issuer, any increase in the cost
to the Issuer of agreeing to issue, issuing or maintaining any Letter of
Credit or of agreeing to make or making, funding or maintaining any unpaid
drawing under any Letter of Credit, then the Company shall be liable for,
and shall from time to time, upon demand (with a copy of such demand to be
sent to the Agent), pay to the Agent for the account of such Lender,
additional amounts as are sufficient to compensate such Lender for such
increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or
other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Lender (or its Lending
Office) or any corporation controlling the Lender with any Capital
Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by the Lender or any corporation
controlling the Lender and (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy and such
Lender's desired return on capital) determines that the amount of such
capital is increased as a consequence of its Commitment, loans, credits or
obligations under this Agreement, then, upon demand of such Lender to the
Company through the Agent, the Company shall pay to the Lender, from time
to time as specified by the Lender, additional amounts sufficient to
compensate the Lender for such increase.
4.04 Funding Losses. The Company shall reimburse each Lender and
hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert
a Loan after the Company has given (or is deemed to have given) a Notice
of Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.08;
(d) the prepayment (including pursuant to Section 2.09) or
other payment (including after acceleration thereof) of an Offshore Rate
Loan on a day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.04 of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last day
of the relevant Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans
or from fees payable to terminate the deposits from which such funds were
obtained. For purposes of calculating amounts payable by the Company to
the Lenders under this Section and under subsection 4.03(a), each Offshore
Rate Loan made by a Lender (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at
the IBOR used in determining the Offshore Rate for such Offshore Rate Loan
by a matching deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for a comparable period, whether or not
such Offshore Rate Loan is in fact so funded.
4.05 Inability to Determine Rates. If the Agent determines that
for any reason adequate and reasonable means do not exist for determining
the Offshore Rate for any requested Interest Period with respect to a
proposed Offshore Rate Loan, or that the Offshore Rate applicable pursuant
to subsection 2.11(a) for any requested Interest Period with respect to a
proposed Offshore Rate Loan does not adequately and fairly reflect the
cost to the Lenders of funding such Loan, the Agent will promptly so
notify the Company and each Lender. Thereafter, the obligation of the
Lenders to make or maintain Offshore Rate Loans hereunder shall be
suspended until the Agent revokes such notice in writing. Upon receipt of
such notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not
revoke such Notice, the Lenders shall make, convert or continue the Loans,
as proposed by the Company, in the amount specified in the applicable
notice submitted by the Company, but such Loans shall be made, converted
or continued as Base Rate Loans instead of Offshore Rate Loans, as the
case may be.
4.06 Certificates of Lenders. Any Lender claiming reimbursement
or compensation under this Article IV shall deliver to the Company (with a
copy to the Agent) contemporaneously with the demand in payment a
certificate setting forth in reasonable detail the amount payable to the
Lender hereunder and such certificate shall be conclusive and binding on
the Company in the absence of manifest error.
4.07 Substitution of Banks. Upon the receipt by the Company from
any Lender (an "Affected Lender") of a claim for compensation under
Section 4.04, of notice that it cannot make Offshore Rate Loans under
Section 4.02, or of a claim for Taxes or Further Taxes under Section 4.01,
then the Agent, at the Company's direction, shall: (i) request the
Affected Lender to use good faith efforts to obtain a replacement bank or
financial institution satisfactory to the Company to acquire and assume
all or a ratable part of all of such Affected Lender's Loans and
Commitments at the face amount thereof (a "Replacement Lender"); (ii)
request one more of the other Lenders to acquire and assume all or part of
such Affected Lender's Loans and Commitments; or (iii) designate a
Replacement Lender. Any such designation of a Replacement Lender under
clause (i) or (iii) shall be subject to the prior written consent of the
Agent (which consent shall not be unreasonably withheld).
4.08 Survival. The agreements and obligations of the Company in
this Article IV shall survive the payment of all other Obligations, and
the Company will have no obligation to pay any amount hereunder unless a
demand is made within 180 days after the date upon which the Agent's or
applicable Lender's right to reimbursement arises.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions. The obligation of
each Lender to make its initial Credit Extension hereunder is subject to
the condition that the Agent shall have received on or before the date of
the initial Credit Extension all of the following, in form and substance
satisfactory to the Agent and each Lender, and in sufficient copies for
each Lender:
(a) Credit Agreement and Notes. This Agreement and the Notes
and the Swing Line Note executed by each party thereto;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors
of the Company and each Subsidiary party to a Loan Document
authorizing the transactions contemplated hereby, certified as of
the Closing Date by the Secretary or an Assistant Secretary of such
Person; and
(ii) A certificate of the Secretary or Assistant
Secretary of the Company and each Subsidiary party to a Loan
Document certifying the names and true signatures of the officers
of the Company or such Subsidiary authorized to execute, deliver
and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the
following documents:
(i) the articles or certificate of incorporation and the
bylaws of the Company and each Subsidiary party to any Loan
Document as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company or such Subsidiary
as of the Closing Date; and
(ii) a good standing certificate or certificate of
status for the Company and each Subsidiary party to any Loan
Document from the Secretary of State (or similar, applicable
Governmental Authority) of its state of incorporation and such
other states as shall be reasonably requested by Agent;
(d) Legal Opinions.
(i) an opinion of Foley & Lardner, counsel to the
Company and addressed to the Agent and the Lenders;
(ii) an opinion of such local counsel to the Company as
shall be requested by the Agent and addressed to the Agent and the
Lenders; and
(iii) confirmation from counsel to each party to the
Stock Purchase Agreement that the Agent and the Lenders may rely
upon its opinion delivered pursuant to the Stock Purchase
Agreement;
(e) Payment of Fees. Evidence of payment by the Company of
all accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date, together with Attorney Costs of BofA to the
extent invoiced prior to or on the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute BofA's reasonable estimate
of Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude
final settling of accounts between the Company and BofA); including any
such costs, fees and expenses arising under or referenced in Sections 2.12
and 11.04;
(f) Certificate. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in
Article VI are true and correct on and as of such date, as though
made on and as of such date;
(ii) no Default or Event of Default exists or would
result from the Credit Extension; and
(iii) there has occurred since September 30, 1997, no
event or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect;
(g) Consummation of the McNeilus Acquisition. The McNeilus
Acquisition has been or is being consummated substantially simultaneously
herewith in accordance with the Stock Purchase Agreement and all
applicable Requirements of Law for a net cash purchase price not in excess
of $225 million, no material conditions to closing set forth therein have
been waived and the final financial results of McNeilus shall be
substantially in accordance with the financial projections previously
provided to the Agent and the Lenders;
(h) Approvals and Consents. All requisite or necessary
Governmental Authorities and third parties shall have approved or
consented to the McNeilus Acquisition to the extent required and/or all
applicable waiting periods shall have expired, all such approvals and
consents shall remain in effect and there shall be no governmental or
judicial action, actual or threatened, that has a reasonable likelihood of
restraining, preventing or imposing burdensome conditions on the McNeilus
Acquisition;
(i) Senior Subordinated Notes. The Senior Subordinated Notes
shall be issued substantially simultaneously herewith in accordance with
the terms of the Senior Subordinated Debt Documents and the Company shall
have received at least $100 million in gross proceeds therefrom;
(j) Collateral Documents. The Collateral Documents, executed
by the Company and the Subsidiaries, in appropriate form for recording,
where necessary, together with:
(i) copies of all UCC-l financing statements to be
filed, registered or recorded to perfect the security interests of
the Agent for the benefit of the Lenders, and other filings,
registrations and recordings necessary and advisable to perfect the
Liens of the Agent for the benefit of the Lenders in accordance
with applicable law;
(ii) written advice relating to such Lien and judgment
searches as the Agent shall have requested, and such termination
statements or other documents as may be necessary to confirm that
the Collateral is subject to no other Liens in favor of any Persons
(other than Permitted Liens);
(iii) all certificates and instruments representing
the Pledged Collateral and stock and note transfer powers executed
in blank with signatures guaranteed as the Agent may specify;
(iv) to the extent requested by the Agent, funds
sufficient to pay any filing or recording tax or fee in connection
with any and all UCC-1 financing statements and the Mortgages;
(v) with respect to the Mortgaged Property, an A.L.T.A.
Form B (or other form acceptable to the Agent and the Lenders)
mortgagee policy of title insurance or a binder issued by a title
insurance company satisfactory to the Agent insuring (or
undertaking to insure, in the case of a binder) that the Mortgages
create and constitute a valid first Lien against the Mortgaged
Property in favor of the Agent, subject only to exceptions
acceptable to the Agent, with such endorsements and affirmative
insurance as the Agent may reasonably request;
(vi) evidence that the Agent has been named as loss payee
under all policies of casualty insurance, and as additional insured
under all policies of liability insurance, required by the
Mortgage;
(vii) flood insurance and earthquake insurance, to
the extent applicable, on terms satisfactory to the Agent;
(viii) current ALTA surveys and surveyor's
certification as to all Mortgaged Property to the extent
reasonably required by the Agent, each in form and substance
satisfactory to the Agent;
(ix) proof of payment (or arrangements therefor
satisfactory to the Agent) of all title insurance premiums,
documentary stamp or intangible taxes, recording fees and mortgage
taxes payable in connection with the recording of any Mortgage or
the issuance of the title insurance policies (whether due on the
Closing Date or in the future) including sums due in connection
with any future advances;
(x) such consents, estoppels, subordination agreements,
waivers and other documents and instruments executed by landlords,
tenants, bailees, warehousemen and other Persons party to material
contracts relating to any Collateral as to which the Agent shall be
granted a Lien for the benefit of the Lenders, as requested by the
Agent; and
(xi) evidence that all other actions necessary or, in the
opinion of the Agent, desirable to perfect and protect the first
priority Lien created by the Collateral Documents, and to enhance
the Agent's ability to preserve and protect its interests in and
access to the Collateral, have been taken (or arrangements therefor
satisfactory to the Agent have been made);
(k) Insurance Policies. Standard lenders' payable
endorsements with respect to the insurance policies or other instruments
or documents evidencing insurance coverage on the properties of the
Company in accordance with Section 6.18;
(l) Environmental Review. Such environmental site
assessments with respect to the real property of the Company and its
Subsidiaries as shall be requested by the Agent;
(m) Repayment of Prior Indebtedness. All outstanding
Indebtedness of the Company or any Subsidiary not specified on Schedule
8.05 or otherwise permitted by Section 8.05 shall have been paid in full
and all Liens securing such Indebtedness shall have been terminated; and
(n) Other Documents. Such other approvals, opinions,
documents or materials as the Agent or any Lender may request.
5.02 Conditions to All Credit Extensions. The obligation of each
Revolving Lender to make any Revolving Loan to be made by it (including
its initial Revolving Loan) and the obligation of the Issuer to Issue any
Letter of Credit (including the initial Letter of Credit) is subject to
the satisfaction of the following conditions precedent on the relevant
Borrowing Date or Issuance Date:
(a) Notice, Application. The Agent shall have received a
Notice of Borrowing or in the case of any Issuance of any Letter of
Credit, the Issuer and the Agent shall have received an L/C Application or
L/C Amendment Application, as required under Section 3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct in
all material respects on and as of such Borrowing Date or Issuance Date
with the same effect as if made on and as of such Borrowing Date or
Issuance Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default
shall exist or shall result from such Borrowing or Issuance.
Each Notice of Borrowing and L/C Application or L/C Amendment Application
submitted by the Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of each such notice and
as of each Borrowing Date or Issuance Date, as applicable, that the
conditions in this Section 5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Lender
that both before and after giving effect to the consummation of the
transactions contemplated by the Transaction Documents:
6.01 Corporate Existence and Power. The Company and each of its
Material Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, to
carry on its business in all material respects and to execute, deliver,
and perform its obligations under the Transaction Documents to which it is
a party;
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and
(d) is in compliance with all Requirements of Law; except, in
each case referred to in clause (c) or clause (d), to the extent that the
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
6.02 Corporate Authorization; No Contravention. The execution,
delivery and performance by the Company and its Subsidiaries of this
Agreement and each other Transaction Document to which such Person is
party, have been duly authorized by all necessary corporate action, and do
not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in any breach or contravention
of, or the creation of any Lien under, any document evidencing any
material Contractual Obligation to which such Person is a party or any
order, injunction, writ or decree of any Governmental Authority to which
such Person or its property is subject; or
(c) violate any Requirement of Law.
6.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority (except those that have been obtained and remain in
effect and for recordings or filings in connection with the Liens granted
to the Agent under the Collateral Documents) is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, the Company or any of its Subsidiaries of the Agreement or any
other Transaction Document.
6.04 Binding Effect. This Agreement and each other Loan Document
to which the Company or any of its Subsidiaries is a party constitute the
legal, valid and binding obligations of the Company and any of its
Subsidiaries to the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.05 Litigation. There are no actions, suits, proceedings, claims
or disputes pending, or to the best knowledge of the Company, threatened
or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against the Company, or its Subsidiaries or any of
their respective properties:
(a) which purport to affect or pertain to this Agreement or
any other Transaction Document, or any of the transactions contemplated
hereby or thereby; or
(b) as to which there exists a substantial likelihood of an
adverse determination, which determination could reasonably be expected to
have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court
or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other
Transaction Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
6.06 No Default. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company or from the
grant or perfection of the Liens of the Agent and the Lenders on the
Collateral. As of the Closing Date, neither the Company nor any
Subsidiary is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, could reasonably be expected to have a Material Adverse Effect,
or that would, if such default had occurred after the Closing Date, create
an Event of Default under subsection 9.01(e).
6.07 ERISA Compliance. Except as specifically disclosed in
Schedule 6.07:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter from the IRS and to the
best knowledge of the Company, nothing has occurred which would cause the
loss of such qualification. The Company and each ERISA Affiliate has made
all required contributions to any Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the best knowledge of
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii)
neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (iv) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Section 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) neither the Company nor any ERISA
Affiliate has engaged in a transaction that could be subject to Section
4069 or 4212(c) of ERISA.
6.08 Use of Proceeds; Margin Regulations. The proceeds of the
Loans are to be used solely for the purposes set forth in and permitted by
Section 7.12 and Section 8.07. Neither the Company nor any Subsidiary is
generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.
6.09 Title to Properties. The Company and each Material
Subsidiary have good record and marketable title in fee simple to, or
valid leasehold interests in, all real property necessary or used in the
ordinary conduct of their respective businesses, except for such defects
in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no Liens, other
than Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be filed,
and have paid all Federal and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which
are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP. There is no
proposed tax assessment against the Company or any Subsidiary that would,
if made, have a Material Adverse Effect.
6.11 Financial Condition. (a) Each of (i) the audited
consolidated financial statements of the Company and its Subsidiaries
dated September 30, 1997, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the fiscal
year ended on that date, (ii) the unaudited consolidated financial
statements of the Company and its Subsidiaries dated December 31, 1997,
and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the three months ended on that
date, (iii) the audited consolidated financial statements of McNeilus and
its Subsidiaries dated February 29, 1997, and the related consolidated
statements of income or operations, shareholders' equity and cash flows
for the fiscal year ended on that date, and (iv) the unaudited
consolidated financial statements of McNeilus and its Subsidiaries dated
November 30, 1997, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for the nine months ended
on that date:
(x) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except for the
absence of footnotes and as otherwise expressly noted therein,
subject, in the case of such unaudited financial statements, to
ordinary, good faith year end audit adjustments;
(y) fairly present the financial condition of the
Company and its Subsidiaries or McNeilus and its Subsidiaries, as
applicable, as of the date thereof and results of operations for
the period covered thereby; and
(z) except as specifically disclosed in Schedule 6.11,
show all material indebtedness and other liabilities, direct or
contingent, of the Company and its Subsidiaries or McNeilus and its
Subsidiaries, as applicable, as of the date thereof.
(b) The unaudited pro forma financial statements at September
30, 1997 or December 31, 1997, as applicable, and for the periods then
ended of the Company and its Subsidiaries (the "Pro Forma") are attached
hereto as Schedule 6.11. As of the date of the Agreement, the Pro Forma
is complete and accurate and fairly represents the Company's and the
Subsidiaries' assets, liabilities, financial condition and results of
operations on a consolidated basis in accordance with GAAP (except for the
absence of footnotes and statements of cash flow), consistently applied
and taking into account the transactions contemplated by the Transaction
Documents.
(c) Since September 30, 1997, there has been no Material
Adverse Effect.
6.12 Environmental Matters. (a) Except as specifically disclosed
in Schedule 6.12, the on-going operations of the Company and each of its
Subsidiaries comply in all respects with all Environmental Laws, except
such non-compliance which would not (if enforced in accordance with
applicable law) result in liability in excess of $2,000,000 in the
aggregate (exclusive of amounts payable under insurance policies and
indemnity agreements which the Company or such Subsidiary reasonably
expects to receive).
(b) Except as specifically disclosed in Schedule 6.12, the
Company and each of its Subsidiaries have obtained all licenses, permits,
authorizations and registrations required under any Environmental Law
("Environmental Permits") and necessary for their respective ordinary
course operations, all such Environmental Permits are in good standing,
and the Company and each of its Subsidiaries are in compliance with all
material terms and conditions of such Environmental Permits.
(c) Except as specifically disclosed in Schedule 6.12, none
of the Company, any of its Subsidiaries or any of their respective present
property or operations, is subject to any outstanding written order from
or agreement with any Governmental Authority, nor subject to (i) any
judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material or (ii) to
the extent that it could reasonably be expected to have a Material Adverse
Effect, any claim, proceeding or written notice from any Person regarding
any Environmental Law, Environmental Claim or Hazardous Material.
(d) Except as specifically disclosed in Schedule 6.12, there
are no Hazardous Materials or other conditions or circumstances existing
with respect to any property of the Company or any Subsidiary, or arising
from operations prior to the Closing Date, of the Company or any of its
Subsidiaries that would reasonably be expected to give rise to
Environmental Claims with a potential liability of the Company and its
Subsidiaries in excess of $2,000,000 in the aggregate for all such
conditions, circumstances and properties (exclusive of amounts payable
under insurance policies and indemnity agreements which the Company or
such Subsidiary reasonably expects to receive). In addition, (i) neither
the Company nor any Subsidiary has any underground storage tanks (x) that
are not properly registered or permitted under applicable Environmental
Laws, or (y) that are leaking or disposing of Hazardous Materials
off-site, which in any such case could reasonably be expected to have a
Material Adverse Effect, and (ii) the Company and its Subsidiaries have
met all material notification requirements under applicable Environmental
Laws.
6.13 Collateral Documents. (a) The provisions of each of the
Collateral Documents are effective to create in favor of the Agent for the
benefit of the Lenders, a legal, valid and enforceable first priority
security interest in all right, title and interest of the Company and its
Subsidiaries in the collateral described therein, subject only to any
Permitted Liens.
(b) Each Mortgage when delivered will be effective to grant
to the Agent for the benefit of the Lenders a legal, valid and enforceable
lien on all the right, title and interest of the mortgagor under such
Mortgage in the mortgaged property described therein. When each such
Mortgage is duly recorded in the offices listed on the schedule to such
Mortgage and the mortgage recording fees and taxes in respect thereof are
paid and compliance is otherwise had with the formal requirements of state
law applicable to the recording of real estate mortgages generally, each
such mortgaged property, subject to the encumbrances and exceptions to
title set forth therein and any Permitted Liens and except as noted in the
title policies delivered to the Agent pursuant to Section 5.01, is subject
to a legal, valid, enforceable and perfected first priority lien; and when
financing statements have been filed in the offices specified in such
Mortgage, such Mortgage also creates a legal, valid, enforceable and
perfected first lien on, and security interest in, all right, title and
interest of the Company or such Subsidiary under such Mortgage in all
personal property and fixtures covered by such Mortgage, subject to no
other Liens, except the encumbrances and exceptions to title set forth
therein and except as noted in the title policies delivered to the Agent
pursuant to Section 5.01, and Permitted Liens.
(c) All representations and warranties of the Company and any
of its Subsidiaries party thereto contained in the Collateral Documents
are true and correct.
6.14 Regulated Entities. None of the Company, any Person
controlling the Company, or any Subsidiary, is an "Investment Company"
within the meaning of the Investment Company Act of 1940. The Company is
not subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
6.15 No Burdensome Restrictions. Neither the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation, or
subject to any restriction in any Organization Document, or any
Requirement of Law, which could reasonably be expected to have a Material
Adverse Effect.
6.16 Copyrights, Patents, Trademarks and Licenses, etc. The
Company and its Material Subsidiaries own or are licensed or otherwise
have the right to use all of the patents, trademarks, service marks, trade
names, copyrights, contractual franchises, authorizations and other rights
that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person. To the
best knowledge of the Company, no slogan or other advertising device,
product, process, method, substance, part or other material now employed,
or now contemplated to be employed, by the Company or any Subsidiary
infringes upon any rights held by any other Person, which infringement
could reasonably be expected to have a Material Adverse Effect. Except as
specifically disclosed in Schedule 6.05, no claim or litigation regarding
any of the foregoing is pending or threatened, and no patent, invention,
device, application, principle or any statute, law, rule, regulation,
standard or code is pending or, to the knowledge of the Company, proposed,
which, in either case, could reasonably be expected to have a Material
Adverse Effect.
6.17 Capitalization; Subsidiaries. As of the Closing Date, after
giving effect to the consummation of the transactions contemplated by the
Transaction Documents, the Company has no Subsidiaries other than those
specifically disclosed in part (a) of Schedule 6.17 hereto and has no
equity investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 6.17. The capitalization
of the Company and its Subsidiaries as of the Closing Date is as set forth
on part (a) of Schedule 6.17.
6.18 Insurance. Except as specifically disclosed in Schedule
6.18, the properties of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Company (other than Nations Casualty Insurance, Inc.), in such amounts,
with such deductibles and covering such risks as are customarily carried
by companies engaged in similar businesses and are similarly situated.
6.19 Swap Obligations. Neither the Company nor any of its
Subsidiaries has incurred any outstanding obligations under any Swap
Contracts, other than Permitted Swap Obligations. The Company has
undertaken its own independent assessment of its consolidated assets,
liabilities and commitments and has considered appropriate means of
mitigating and managing risks associated with such matters and has not
relied on any swap counterparty or any Affiliate of any swap counterparty
in determining whether to enter into any Swap Contract.
6.20 Acquisition Documents. The Company has delivered to the
Agent true, complete and correct copies of the Acquisition Documents
(including all schedules, exhibits, annexes, amendments, supplements,
modifications and all other documents delivered pursuant thereto or in
connection therewith). The Acquisition Documents as originally executed
and delivered by the parties thereto have not been amended, waived,
supplemented or modified without the consent of the Agent. The
representations and warranties of the parties set forth therein are true
and correct in all material respects as of the date thereof. On the date
of this Agreement, neither the Company nor any other party to any of the
Acquisition Documents is in default in the performance of or compliance
with any provisions under the Acquisition Documents. The McNeilus
Acquisition is being consummated contemporaneously with the initial
Borrowing Date in accordance with applicable laws and regulations.
6.21 Solvency. The Company and each of its Material Subsidiaries
are Solvent.
6.22 Subordination Provisions. The subordination provisions
contained in the Senior Subordinated Debt Documents are enforceable
against the Company and the holders thereof, and the Loans are within the
definition of "Senior Debt" included in such provisions.
6.23 Year 2000 Compliance. The Company and its Subsidiaries have
conducted a comprehensive review and assessment of its computer
applications, and have made inquiry of their material suppliers, vendors
and customers, with respect to any defect in computer software, data
bases, hardware, controls and peripherals related to the occurrence of the
year 2000 or the use of any date after December 31, 1999 in connection
therewith. Based on the foregoing review, assessment and inquiry, the
Company believes that no such defect could reasonably be expected to have
a Material Adverse Effect.
6.24 Full Disclosure. None of the representations or warranties
made by the Company or any Subsidiary in the Loan Documents as of the date
such representations and warranties are made or deemed made, and none of
the statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of the Company or any Subsidiary in connection
with the Loan Documents (including the offering and disclosure materials
delivered by or on behalf of the Company to the Lenders prior to the
Closing Date), contains any untrue statement of a material fact or omits
any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they
are made, not misleading as of the time when made or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any
Loan or other Obligation shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, unless the Required Lenders waive
compliance in writing:
7.01 Financial Statements. The Company shall deliver to the
Agent, in form and detail satisfactory to the Agent and the Required
Lenders, with sufficient copies for each Lender:
(a) as soon as available, but not later than the earlier of
(i) five days after the filing thereof with the SEC and (ii) 105 days
after the end of each fiscal year (commencing with the fiscal year ended
September 30, 1998), a copy of the audited consolidated balance sheet of
the Company and its Subsidiaries as at the end of such year and the
related consolidated statements of income, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by the opinion of
Ernst & Young LLP or another nationally-recognized independent public
accounting firm ("Independent Auditor") which report shall state that such
consolidated financial statements present fairly the financial position
for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be qualified or
limited because of a restricted or limited examination by the Independent
Auditor of any material portion of the Company's or any Subsidiary's
records;
(b) as soon as available, but not later than the earlier of
(i) five days after the filing thereof with the SEC and (ii) 45 days after
the end of each of the first three fiscal quarters of each fiscal year
(commencing with the fiscal quarter ended March 31, 1998), a copy of the
unaudited consolidated balance sheet of the Company and its Subsidiaries
as of the end of such fiscal quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the period
commencing on the first day and ending on the last day of such fiscal
quarter, together with a consolidating income statement for such period,
and certified by a Responsible Officer as fairly presenting, in accordance
with GAAP (subject to ordinary, good faith year-end audit adjustments and
the absence of footnotes), the financial position and the results of
operations of the Company and the Subsidiaries; and
(c) as soon as available, but not later than 45 days after
the end of each month through February 1999 and 30 days after the end of
each month thereafter, a copy of the unaudited consolidated balance sheet
of the Company and its Subsidiaries as of the end of such month and the
related consolidated statements of income, shareholders' equity and cash
flows for the period commencing on the first day and ending on the last
day of such month, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to ordinary, good faith year-
end audit adjustments and the absence of footnotes), the financial
position and the results of operations of the Company and the
Subsidiaries.
7.02 Certificates; Other Information. The Company shall furnish
to the Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.01(a), a certificate of the
Independent Auditor stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.01(a) and (b), a Compliance
Certificate executed by a Responsible Officer;
(c) concurrently with the delivery of the financial
statements referred to in subsection 7.01(a), (i) a consolidating balance
sheet and income statement for such year (which need not be audited) and,
in the case of such income statement, setting forth in comparative form
the figures for the previous fiscal year, and (ii) a budget for the next
succeeding fiscal year;
(d) promptly, copies of all financial statements and reports
that the Company sends to its shareholders, and copies of all financial
statements and regular, periodic or special reports (including Forms 10K,
10Q and 8K) that the Company or any Subsidiary may make to, or file with,
the SEC; and
(e) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any Subsidiary
as the Agent, at the request of any Lender, may from time to time
reasonably request.
7.03 Notices. The Company shall promptly notify the Agent and
each Lender:
(a) of the occurrence of any Default or Event of Default, and
of the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default;
(b) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including, to the extent
so applicable, (i) any breach or non-performance of, or any default under,
a Contractual Obligation of the Company or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the
Company or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or
proceeding affecting the Company or any Subsidiary; including pursuant to
any applicable Environmental Laws;
(c) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event more than 10
days after such event becomes known to an officer of the Company or any
Subsidiary), and deliver to the Agent and each Lender a copy of any notice
with respect to such event that is filed with a Governmental Authority and
any notice delivered by a Governmental Authority to the Company or any
ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code by
the Company or any ERISA Affiliate resulting in a material
contribution obligation; or
(iv) the adoption of any amendment to a Plan subject
to Section 412 of the Code, if such amendment results in a material
increase in contributions or Unfunded Pension Liability.
(d) of any material change in accounting policies or
financial reporting practices by the Company or any of its consolidated
Subsidiaries; and
(e) upon, but in no event later than 15 days after, any
officer of the Company or any Subsidiary becoming aware of (i) any and all
enforcement, investigation, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Company
or any Subsidiary or any of their respective properties pursuant to any
applicable Environmental Laws which could reasonably be expected to have a
Material Adverse Effect, (ii) all other material Environmental Claims, and
(iii) any environmental or similar condition on any real property
adjoining or in the vicinity of the property of the Company or any
Subsidiary that could reasonably be anticipated to cause such property of
the Company or such Subsidiary or any part thereof to be subject to any
material restrictions on the ownership, occupancy, transferability or use
of such property under any Environmental Laws.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto and at what
time. Each notice under subsection 7.03(a) shall describe with
particularity any and all clauses or provisions of this Agreement or other
Loan Document that have been (or foreseeably will be) breached or
violated.
7.04 Preservation of Corporate Existence, Etc. The Company shall,
and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation, except to the extent otherwise expressly
permitted herein;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business
except in connection with transactions permitted by Section 8.03 and sales
of assets permitted by Section 8.02;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill except to the
extent otherwise expressly permitted herein; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which
could reasonably be expected to have a Material Adverse Effect.
The Company shall cause each Subsidiary which is a Wholly-Owned Subsidiary
as of the date hereof to continue to exist as a Wholly-Owned Subsidiary so
long as it shall be a Subsidiary.
7.05 Maintenance of Property. The Company shall maintain, and
shall cause each Subsidiary to maintain, and preserve all its property
which is used or useful in its business in good working order and
condition, ordinary wear and tear excepted, and make all necessary repairs
thereto and renewals and replacements thereof except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect.
7.06 Insurance. In addition to insurance requirements set forth
in the Collateral Documents, the Company shall maintain, and shall cause
each Subsidiary to maintain, with financially sound and reputable
independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against
by Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by
such other Persons; including workers' compensation insurance, public
liability and property and casualty insurance which amount shall not be
materially reduced by the Company in the absence of 30 days' prior written
notice to the Agent. All casualty insurance maintained by the Company
shall name the Agent as loss payee and all liability insurance shall name
the Agent as additional insured for the benefit of the Lenders, as their
interests may appear. Upon request of the Agent or any Lender, the Company
shall furnish the Agent, with sufficient copies for each Lender, at
reasonable intervals (but not more than once per calendar year) a
certificate of a Responsible Officer of the Company (and, if requested by
the Agent, any insurance broker of the Company) setting forth the nature
and extent of all insurance maintained by the Company and its Subsidiaries
in accordance with this Section or any Collateral Documents (and which, in
the case of a certificate of a broker, were placed through such broker).
7.07 Payment of Obligations. The Company shall, and shall cause
each Subsidiary to, pay and discharge as the same shall become due and
payable, all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges
or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves
in accordance with GAAP are being maintained by the Company or such
Subsidiary; and
(b) all material lawful claims which, if unpaid, would by law
become a Lien upon its property in violation of Section 8.01.
7.08 Compliance with Laws. The Company shall comply, and shall
cause each Subsidiary to comply, in all material respects with all
material Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair Labor
Standards Act), except such as may be contested in good faith or as to
which a bona fide dispute may exist.
7.09 Compliance with ERISA. The Company shall, and shall cause
each of its ERISA Affiliates to: (a) maintain each Plan in compliance in
all material respects with the applicable provisions of ERISA, the Code
and other federal or state law; (b) cause each Plan which is qualified
under Section 401(a) of the Code to maintain such qualification; and (c)
make all required contributions to any Plan subject to Section 412 of the
Code; to the extent that any failure to comply with any such provision
could reasonably be expected to result in liabilities in excess of
$1,000,000 for all such failures in the aggregate.
7.10 Inspection of Property and Books and Records. The Company
shall maintain and shall cause each Subsidiary to maintain proper books of
record and account, in which full, true and correct entries in conformity
with GAAP consistently applied shall be made of all financial transactions
and matters involving the assets and business of the Company and such
Subsidiary. The Company shall permit, and shall cause each Subsidiary to
permit, representatives and independent contractors of the Agent or any
Lender to visit and inspect any of their respective properties, to examine
their respective corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective directors, officers,
and independent public accountants, all at such reasonable times during
normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; provided, however, when an Event
of Default exists the Agent or any Lender may do any of the foregoing at
the expense of the Company at any time during normal business hours and
without advance notice; provided, further, that neither the Agent nor any
Lender shall conduct any environmental testing of any owned or leased
facility of the Company or any Subsidiary without the prior written
consent of the Company, which shall not unreasonably be withheld.
7.11 Environmental Laws. (a) The Company shall, and shall cause
each Subsidiary to, conduct its operations and keep and maintain its
property in compliance with all Environmental Laws, the violation of which
could reasonably be expected to result in liability to the Company and its
Subsidiaries in excess of $2,000,000 in the aggregate (net of any payments
under insurance policies or indemnity agreements which the Company or such
Subsidiary reasonably expects to receive).
(b) Upon the written request of the Agent or any Lender, the
Company shall submit and cause each of its Subsidiaries to submit, to the
Agent with sufficient copies for each Lender, at the Company's sole cost
and expense, at reasonable intervals, a report providing an update of the
status of any environmental, health or safety compliance, hazard or
liability issue identified in any notice or report required pursuant to
subsection 7.03(e), that could, individually or in the aggregate, result
in liability in excess of $2,000,000 (net of any payments under insurance
policies or indemnity agreements which the Company or such Subsidiary
reasonably expects to receive).
7.12 Use of Proceeds. The Company shall use the proceeds of the
Loans (a) to finance in part the McNeilus Acquisition and to pay certain
fees and expenses related thereto, (b) to refinance existing Indebtedness
of the Company and its Subsidiaries and of McNeilus and (c) for working
capital and other general corporate purposes not in contravention of any
Requirement of Law or of any Loan Document.
7.13 Further Assurances. (a) The Company shall ensure that all
written information, exhibits and reports furnished to the Agent or the
Lenders do not and will not contain any untrue statement of a material
fact and do not and will not omit to state any material fact or any fact
necessary to make the statements contained therein not misleading in light
of the circumstances in which made, and will promptly disclose to the
Agent and the Lenders and correct any defect or error that may be
discovered therein or in any Loan Document or in the execution,
acknowledgment or recordation thereof.
(b) Promptly upon request by the Agent or the Required
Lenders, the Company shall (and shall cause any of its Subsidiaries to)
do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register, any and all such further acts, deeds,
conveyances, security agreements, mortgages, assignments, estoppel
certificates, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and
other instruments the Agent or such Lenders, as the case may be, may
reasonably require from time to time in order (i) to carry out more
effectively the purposes of this Agreement or any other Loan Document,
(ii) to subject to the Liens created by any of the Collateral Documents
any of the properties, rights or interests covered by any of the
Collateral Documents, (iii) to perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and the
Liens intended to be created thereby, and (iv) to better assure, convey,
grant, assign, transfer, preserve, protect and confirm to the Agent and
Lenders the rights granted or now or hereafter intended to be granted to
the Lenders under any Loan Document or under any other document executed
in connection therewith.
7.14 Additional Guaranties and Personal Property Pledge.
Effective upon any Person (a) becoming a Domestic Subsidiary (other than
(x) any Domestic Subsidiary with less than 1.0% of the total assets of the
Company and its Subsidiaries (other than Leasing Subsidiaries) and (y) any
Leasing Subsidiary) or (b) becoming or being required to become a
"Subsidiary Guarantor" under the Senior Subordinated Indenture or a
guarantor of any other subordinated Indebtedness of the Company or any
Domestic Subsidiary, such Person shall (i) join as a guarantor under the
Subsidiary Guaranty and the Subsidiary Security Agreement pursuant to
amendments thereto in form and substance acceptable to the Agent and (ii)
provide an intercompany note to the Company which shall be pledged to the
Agent pursuant to the Pledge Agreement; provided, that any Domestic
Subsidiary which does not become a party to the Subsidiary Guaranty and
the Subsidiary Security Agreement because it does not satisfy the
requirement in clause (x) above shall execute the Subsidiary Guaranty and
the Subsidiary Security Agreement if it subsequently acquires sufficient
assets to satisfy such requirement; provided, further, that if all
Domestic Subsidiaries (other than Leasing Subsidiaries) which are not
party to the Subsidiary Guaranty and the Subsidiary Security Agreement
hold 2.0% or more of the total assets of the Company and its Subsidiaries
(other than Leasing Subsidiaries), then such Domestic Subsidiaries shall
promptly execute the Subsidiary Guaranty and the Subsidiary Security
Agreement so that, upon such execution, such 2.0% threshold is no longer
exceeded. The Company shall promptly notify the Agent at any time at
which, in accordance with this Section 7.14, any Subsidiary shall be
required to join as a guarantor under the Subsidiary Guaranty and the
Subsidiary Security Agreement.
7.15 Additional Real Property. Concurrent with (a) the
acquisition by the Company or any Domestic Subsidiary of any parcel of
property which has a value in excess of $500,000 or (b) the acquisition
or lease by the Company or any Domestic Subsidiary of any parcel of
property which, in the Agent's determination, is otherwise of significant
value to the operations of the Company and its Subsidiaries, unless the
Required Lenders shall otherwise direct, the Company shall, or shall cause
such Domestic Subsidiary to, execute and deliver to the Agent a Mortgage
on such parcel or leasehold substantially in the form of the applicable
Mortgages executed and delivered on the date hereof, together with such
other of the items specified in subsection 5.01(j) as shall be applicable
thereto, in each case in form and substance acceptable to the Agent.
7.16 Additional Pledge. Effective upon any Person becoming a
Subsidiary (including without limitation any Leasing Subsidiary), the
shareholder or shareholders thereof, of the Company or any Subsidiaries,
shall pledge the stock or other equity interests thereof to the Agent
pursuant to documentation reasonably acceptable to the Agent; provided,
that the equity interests of MFSI and its Subsidiaries shall not be
required to be pledged to the Agent until promptly following the
termination of the Letter Agreements, other than the equity interests of
Oshkosh/McNeilus Financial Services Partnership, which need not be pledged
at any time; provided, further, that such shareholder shall only be
required to pledge 65% of the equity interests of any Subsidiary which is
not a Domestic Subsidiary.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any
Loan or other Obligation shall remain unpaid or unsatisfied, or any Letter
of Credit shall remain outstanding, unless the Required Lenders waive
compliance in writing:
8.01 Limitation on Liens. The Company shall not, and shall not
suffer or permit any Subsidiary to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part
of its property, whether now owned or hereafter acquired, other than the
following ("Permitted Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth in Schedule 8.01 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to
the extent that non-payment thereof is permitted by Section 7.07, provided
that no notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary
course of business which are not delinquent or remain payable without
penalty or which are being contested in good faith and by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting
of pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(f) Liens on the property of the Company or its Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, (ii)
Contingent Obligations in connection with performance bonds, Surety Bonds
and appeal bonds, and (iii) other non-delinquent obligations of a like
nature, in each case, incurred in the ordinary course of business;
provided that all such Liens in the aggregate could not (taking into
account the probable likelihood of their being enforced) reasonably be
expected to cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is effectively stayed
and the obligations secured by all such Liens in the aggregate at any time
outstanding for the Company and its Subsidiaries do not exceed $2,000,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business 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 businesses of the Company and
its Subsidiaries;
(i) Liens on assets of corporations which become Subsidiaries
after the date of this Agreement, provided, however, that such Liens
existed at the time the respective corporations became Subsidiaries and
were not created in anticipation thereof and the obligations secured by
all such Liens in the aggregate at any time outstanding do not exceed (i)
$10,000,000, less (ii) amounts outstanding under paragraphs (j) and (n);
(j) purchase money security interests on any property
acquired or held by the Company or its Subsidiaries, securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the
cost of acquiring such property; provided that (i) any such Lien attaches
to such property concurrently with or within 20 days after the acquisition
thereof, (ii) such Lien attaches solely to the property so acquired in
such transaction and other like assets in respect of which financing was
provided by the same lender to the obligor of such Indebtedness, (iii) the
principal amount of the debt secured thereby does not exceed 100% of the
cost of such property, and (iv) the principal amount of the Indebtedness
secured by any and all such purchase money security interests shall not at
any time exceed, together with Indebtedness permitted under subsection
8.05(d), (i) $10,000,000, less (ii) amounts outstanding under paragraphs
(i) and (n);
(k) Liens securing obligations in respect of capital leases
on assets subject to such leases, provided that such capital leases are
otherwise permitted hereunder;
(l) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with
a creditor depository institution; provided that (i) such deposit account
is not a dedicated cash collateral account and is not subject to
restrictions against access by the Company or any Subsidiary in excess of
those set forth by regulations promulgated by the FRB, and (ii) such
deposit account is not intended by the Company or any Subsidiary to
provide collateral to the depository institution;
(m) Liens on vehicles or related property securing
obligations under any Floor Plan Financing Facility incurred in the
ordinary course of business; provided, that the aggregate principal amount
of all obligations at any time outstanding under all Floor Plan Financing
Facilities after giving effect to such incurrence does not exceed the
total cost of the vehicles and equipment securing such obligations; and
(n) Liens securing other obligations of the Company and its
Subsidiaries not to exceed in the aggregate at any one time outstanding
(i) $10,000,000 less (ii) amounts outstanding under paragraphs (i) and
(j).
8.02 Disposition of Assets. The Company shall not, and shall not
suffer or permit any Subsidiary to, directly or indirectly, (x) issue any
equity interests of any Subsidiary to any Person which is not the Company
or a Subsidiary or (y) sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) any property,
including accounts and notes receivable, with or without recourse (each,
an "Asset Disposition"), or enter into any agreement to do any of the
foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment
is exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement equipment;
(c) Asset Dispositions by any Subsidiary to any Wholly-Owned
Subsidiary that is party to the Subsidiary Guaranty;
(d) sale/leaseback transactions involving an aggregate
consideration not to exceed $10,000,000 after the date hereof;
(e) the transfer of Lease Assets to Leasing Subsidiaries
solely in connection with Leasing Transactions;
(f) the sale or other disposition of the assets or stock of
Summit Performance Systems, Inc. in exchange for cash or a promissory
note; provided, that any such promissory note is pledged to the Agent
pursuant to the Pledge Agreement;
(g) the sale of Nations Casualty Insurance, Inc.; and
(h) dispositions not otherwise permitted hereunder which are
made for fair market value; provided, that (i) at the time of any
disposition, no Event of Default shall exist or shall result from such
disposition, (ii) at least 75% of the aggregate sales price from such
dispositions shall be paid in cash, and (iii) the aggregate value of all
assets so sold by the Company and its Subsidiaries after the date hereof,
together, shall not (x) represent more than 10% of Net Worth, as would be
shown in the consolidated financial statements of the Company and its
Subsidiaries as at the end of the fiscal quarter next preceding the date
on which such determination is made, or (y) be responsible for more than
10% of the consolidated net revenues or consolidated net income of the
Company and its Subsidiaries for the 12-month period ending as of the end
of the fiscal quarter next preceding the date of determination.
8.03 Consolidations and Mergers. The Company shall not, and shall
not suffer or permit any Subsidiary to, merge, consolidate with or into,
or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except:
(a) any Subsidiary may merge with the Company, provided that
(i) the Company shall be the continuing or surviving corporation, or with
any one or more Subsidiaries, and (ii) if any transaction shall be between
a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary
shall be the continuing or surviving corporation;
(b) another Person organized under the laws of any state of
the United States may merge with or consolidate into the Company or any
Subsidiary so long as (i) no Default or Event of Default shall have
occurred and be continuing either before or after giving effect to such
transaction (determined in respect of Sections 8.16, 8.17 and 8.18 on a
pro forma basis as of the last day of the prior fiscal quarter), (ii) the
Company or such Subsidiary is the surviving Person, and (iii) all
applicable legal requirements have been satisfied;
(c) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to the Company or
another Wholly-Owned Subsidiary; and
(d) the Company may merge with a corporation organized under
the laws of any state of the United States solely for the purpose of
reincorporating in such other state so long as (i) the surviving Person
assumes the Company's Obligations under the Loan Documents pursuant to a
written instrument reasonably satisfactory to the Agent and (ii) no
Default has occurred and is continuing or would occur after giving effect
thereto.
8.04 Loans and Investments. The Company shall not purchase or
acquire, or suffer or permit any Subsidiary to purchase or acquire, or
make any commitment therefor, any capital stock, equity interest, or any
obligations or other securities of, or any interest in, any Person, or
make or commit to make any Acquisitions, or make or commit to make any
advance, loan, extension of credit or capital contribution to or any other
investment in, any Person including any Affiliate of the Company
(together, "Investments"), except for:
(a) Investments held by the Company or Subsidiary in the form
of cash equivalents or short term marketable securities;
(b) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services in
the ordinary course of business;
(c) Investments by the Company or any Subsidiary in
Wholly-Owned Subsidiaries party to the Subsidiary Guaranty or unsecured
loans made by any Subsidiary to the Company;
(d) Investments incurred in order to consummate Acquisitions
otherwise permitted herein, provided that (i) the cash consideration for
Acquisitions undertaken by the Company and its Subsidiaries shall not
exceed $15,000,000 in the aggregate in any fiscal year of the Company or
$30,000,000 in the aggregate for all such Acquisitions consummated after
the Closing Date, (ii) such Acquisitions are undertaken in accordance with
all applicable Requirements of Law, (iii) the prior, effective written
consent or approval to such Acquisition of the board of directors or
equivalent governing body of the acquiree is obtained, (iv) the Company
provides the Agent and the Lenders with a certificate at least ten days
prior to the consummation of such Acquisition evidencing that, after
giving effect to such Acquisition, its Leverage Ratio would be at least
.25 less than that required pursuant to Section 8.17 as of such date (as
determined on a pro forma basis as of the last day of the preceding fiscal
quarter), (v) the Person or business which is the subject of such
Acquisition is in the same or similar line of business as the Company and
its Subsidiaries, and (vi) such Acquisition consists exclusively of (A)
assets located in the United States or (b) a Person organized under the
laws of the United States or any state thereof;
(e) Investments in Joint Ventures (other than Leasing
Subsidiaries) not exceeding $12,000,000 in the aggregate after the Closing
Date;
(f) Investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(g) advances to vendors of the Company and its Subsidiaries,
or suppliers to such vendors, to enable such vendors and suppliers to
purchase goods or parts to be processed and sold to the Company and its
Subsidiaries in the ordinary course of business and consistent with past
practices;
(h) loans and advances to officers, directors and employees
of the Company and its Subsidiaries not to exceed $1,000,000 in the
aggregate at any one time outstanding;
(i) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(j) loans and advances to sales representatives of the
Company or its Subsidiaries in the ordinary course of business and
consistent with past practices;
(k) Investments (i) by the Company or any Subsidiary in
Subsidiaries to the extent not permitted under clause (c) above and (ii)
incurred in order to consummate Acquisitions of (x) assets located outside
the United States or (y) Persons which are not organized under the laws of
the United States or any state thereof; provided, that the aggregate cash
consideration paid therefor after the date hereof shall not exceed
$5,000,000 or more than $2,500,000 in any fiscal year; provided, further,
that any such Investment made in order to consummate an Acquisition shall
be made in compliance with clauses (ii), (iii), (iv) and (v) of paragraph
(d) above;
(l) Cash Investments required to form Oshkosh/McNeilus
Financial Services Partnership in an amount not to exceed $1,500,000 in
the aggregate after the date hereof, Investments in Leasing Subsidiaries
consisting exclusively of Lease Assets solely in connection with the
consummation of Leasing Transactions and additional Investments in Leasing
Subsidiaries consisting of cash and other property in an amount not to
exceed $15,000,000 in the aggregate after the date hereof or $5,000,000 in
any fiscal year;
(m) Investments in Nations Casualty Insurance, Inc. in an
aggregate amount not to exceed the amount distributed thereby as a
dividend after the date hereof, so long as no Default or Event of Default
has occurred and is continuing before or after giving effect thereto; and
(n) Investments of a nature not contemplated by the foregoing
clauses hereof that are outstanding as of the Closing Date and set forth
in Schedule 8.04 hereto.
8.05 Limitation on Indebtedness. The Company shall not, and shall
not suffer or permit any Subsidiary to, create, incur, assume, suffer to
exist, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.08;
(c) Indebtedness existing on the Closing Date and set forth
in Schedule 8.05;
(d) Indebtedness incurred in connection with leases permitted
pursuant to Section 8.10;
(e) (i) unsecured Indebtedness owed to the Company by any
Subsidiary so long as it is (A) evidenced by a note pledged to the Agent
and (B) incurred in accordance with Section 8.04, (ii) unsecured
Indebtedness owed by the Company or any Subsidiary to a Subsidiary so long
as it is incurred in accordance with Section 8.04 and (iii) unsecured
Indebtedness owed by the Company to any Leasing Subsidiary to the extent
of funds advanced to the Company in connection with the Company's cash
pooling arrangements.
(f) Indebtedness evidenced by the Senior Subordinated Notes;
(g) unsecured Indebtedness owed to former McNeilus
shareholders in an aggregate principal amount not to exceed $3,300,000 at
any one time outstanding; and
(h) other Indebtedness with an aggregate principal amount not
to exceed $20,000,000 at any time outstanding.
In addition, the Company shall not permit MFSI to incur any Indebtedness
while any Letter Agreement shall remain in effect.
8.06 Transactions with Affiliates. The Company shall not, and
shall not suffer or permit any Subsidiary to, enter into any transaction
with any Affiliate of the Company, except upon fair and reasonable terms
no less favorable to the Company or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company or such Subsidiary and except for the following:
(a) any employment or severance agreement and any amendment
thereto entered into by the Company or any of its Subsidiaries in the
ordinary course of business;
(b) transactions between or among the Company and/or its
Subsidiaries and transactions between or among the Company or any
Subsidiary and any Leasing Subsidiary (including the contribution of
overhead costs consistent with past practice) in the ordinary course of
business;
(c) the payment of reasonable directors' fees and benefits,
provided that the amount of such fees and benefits paid to any Affiliate
does not exceed the amount of such fees and benefits paid to any Person
who is not otherwise an Affiliate of the Company;
(d) payments permitted pursuant to Section 8.11 and
transactions permitted pursuant to Section 8.04 or Section 8.08;
(e) the provision of officers' and directors' indemnification
and insurance in the ordinary course of business to the extent permitted
by applicable law;
(f) the payment of employee salaries, bonuses and employee
benefits in the ordinary course of business (including the payment of
commissions on behalf of any Leasing Subsidiary by the Company or any of
its Subsidiaries consistent with past practices and in the ordinary course
of business); and
(g) the payment of amounts owing under the existing lease
between the Company and Cadence Company and under any amendment or
extension thereof so long as any such amendment or extension is not
disadvantageous to the Lenders in any material respect.
8.07 Use of Proceeds. The Company shall not, and shall not suffer
or permit any Subsidiary to, use any portion of the proceeds of any Loan
or any Letter of Credit, directly or indirectly, (i) to purchase or carry
Margin Stock, (ii) to repay or otherwise refinance indebtedness of the
Company or others incurred to purchase or carry Margin Stock, (iii) to
extend credit for the purpose of purchasing or carrying any Margin Stock,
or (iv) to acquire any security in any transaction that is subject to
Section 13 or 14 of the Exchange Act.
8.08 Contingent Obligations. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume or suffer to
exist any Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary
course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in Schedule 8.08;
(d) Contingent Obligations with respect to Indebtedness of
the Company's Wholly-Owned Subsidiaries permitted pursuant to Section
8.05;
(e) Contingent Obligations with respect to Surety Instruments
incurred by the Company and its Subsidiaries (including on behalf of third
parties) in the ordinary course of business;
(f) Contingent Obligations of the Company in respect of the
Bank One leasing program in an amount not to exceed $1,000,000 at any one
time outstanding; and
(g) other Contingent Obligations (except in respect of
obligations of Leasing Subsidiaries) not exceeding at any time $5,000,000
in the aggregate in respect of the Company and its Subsidiaries together.
8.09 Joint Ventures. The Company shall not, and shall not suffer
or permit any Subsidiary to enter into any Joint Venture, other than (a)
in the ordinary course of business and (b) in compliance with subsection
8.04(e) and (l).
8.10 Lease Obligations. The Company shall not, and shall not
suffer or permit any Subsidiary to, create or suffer to exist any
obligations for the payment of rent for any property under lease or
agreement to lease, except for:
(a) leases of the Company and of Subsidiaries in existence on
the Closing Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any
Subsidiary after the Closing Date in the ordinary course of business;
(c) leases entered into by the Company or any Subsidiary
after the Closing Date pursuant to sale-leaseback transactions permitted
under subsection 8.05; and
(d) capital leases other than those permitted under clauses
(a) and (c) of this Section, entered into by the Company or any Subsidiary
after the Closing Date to finance the acquisition of equipment.
8.11 Restricted Payments. The Company shall not, and shall not
suffer or permit any Subsidiary to, declare or make any dividend payment
or other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of its capital stock, or
purchase, redeem or otherwise acquire for value any shares of its capital
stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding (collectively, "Restricted Equity Payments"); except
that any Subsidiary may declare and make dividend payments and other
distributions to its shareholders on a pro rata basis and the Company may:
(a) declare and make dividend payments or other distributions
payable solely in its common stock;
(b) purchase, redeem or otherwise acquire shares of its
common stock or warrants or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares of
its common stock; and
(c) declare or pay cash dividends to its stockholders and
purchase, redeem or otherwise acquire shares of its capital stock or
warrants, rights or options to acquire any such shares for cash and
computed on a cumulative consolidated basis; provided, that, (i) all such
payments made in any period of four fiscal quarters (ending with the
fiscal quarter in which any such payment is made) shall not exceed the
lesser of (A) the sum of (1) the Company's consolidated net income for the
period of four fiscal quarters ending with the second preceding fiscal
quarter prior to the fiscal quarter in which such payment is made (if
positive), plus (2) only to the extent necessary to permit the payment of
up to $5,000,000 in Restricted Equity Payments during any fiscal year, an
amount equal to all or any portion of the Dividend Supplement Amount as
designated in writing to the Agent by the Company at least five Business
Days prior to the payment of such incremental amount, and (B) the sum of
(1) $5,000,000, plus (2) 5% of the Company's consolidated net income for
the period specified in clause (A), and (ii) immediately after giving
effect to such proposed action, no Default or Event of Default would exist
(determined with respect to Sections 8.16, 8.17 and 8.18 on a pro forma
basis as of the last day of the previous fiscal quarter); provided,
further, that the Company may pay dividends in its 1998 fiscal year in an
aggregate amount not to exceed $4,400,000 so long as no Default or Event
of Default has occurred and is continuing or would occur after giving
effect thereto (determined, in respect of Sections 8.16, 8.17 and 8.18 on
a pro forma basis as of the last day of the immediately preceding fiscal
quarter).
8.12 ERISA. The Company shall not, and shall not suffer or permit
any of its ERISA Affiliates to: (a) engage in a prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan
which has resulted or could reasonably expected to result in liability of
the Company in an aggregate amount in excess of $1,000,000; or (b) engage
in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
8.13 Change in Business. The Company shall not, and shall not
suffer or permit any Subsidiary to, engage in any material line of
business substantially different from those lines of business carried on
by the Company and its Subsidiaries on the date hereof.
8.14 Accounting Changes. The Company shall not, and shall not
suffer or permit any Subsidiary to, (a) make any significant change in
accounting treatment or reporting practices, except (i) as required by
GAAP, (ii) a change in the depreciation method employed thereby to
straight line depreciation and (iii) any other change which does not
affect the calculations required to determine compliance with Section
8.16, 8.17 or 8.18, or (b) change the fiscal year of the Company or of any
Subsidiary.
8.15 Amendments to Charter and Agreements; Subordinated
Indebtedness. The Company will not, nor will it permit any Subsidiary to,
(a) make any amendment or modification to any indenture, notes or other
agreement evidencing or governing any subordinated Indebtedness, including
without limitation the Indebtedness evidenced by the Senior Subordinated
Notes, (b) directly or indirectly prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire, any such Indebtedness,
except that (i) the Company may pay the Senior Subordinated Notes on the
scheduled maturity date therefor in accordance with the terms thereof
(including without limitation the terms of subordination set forth
therein) as in effect on the date of this Agreement and (ii) the Company
may apply an amount equal to 25% of the Net Proceeds realized upon any
issuance of equity securities by the Company to the prepayment or
repurchase of the Senior Subordinated Notes so long as (A) after giving
effect thereto, the Company's Senior Debt to EBITDA Ratio is less than 2.0
to 1.0 and (B) no Event of Default or Default has occurred and is
continuing or would occur after giving effect thereto, determined in the
case of clauses (A) and (B) (in respect of Sections 8.16, 8.17, and 8.18)
on a pro forma basis as of the last day of the immediately preceding
fiscal quarter, (c) make any amendment or modification to any terms or
provisions of its Certificate or Articles of Incorporation or bylaws which
is materially adverse to the Agent or the Lenders without the prior
written consent of the Required Lenders or (d) issue any preferred stock.
The Company shall not, and shall not permit any Subsidiary to, amend,
waive, modify or terminate any material portion of any Acquisition
Document. The Company will not designate any Indebtedness as "Designated
Senior Indebtedness" under the Senior Subordinated Indenture.
8.16 Net Worth. The Company shall not permit its consolidated Net
Worth at any time to be less than the sum of (a) $110,000,000, plus (b)
the aggregate Net Proceeds of all offerings and sales of equity securities
by the Company or any Subsidiary after the Closing Date.
8.17 Leverage Ratio. The Company shall not permit its Leverage
Ratio as determined as of the last day of each fiscal quarter in any
period set forth below to be greater than the ratio set forth below for
such period:
Period Ratio
4/1/98 through 9/29/98 5.35:1.0
9/30/98 through 3/30/99 5.00:1.0
3/31/99 through 9/29/99 4.75:1.0
9/30/99 through 3/30/00 4.50:1.0
3/31/00 through 9/29/00 4.25:1.0
9/30/00 and thereafter 4.00:1.0
8.18 Fixed Charge Coverage Ratio. The Company shall not, as of the
last day of any fiscal quarter beginning after March 31, 1998, permit its
ratio of (a) EBITDA for the period of four fiscal quarters then ending to
(b) Fixed Charges for such four fiscal quarter period to be less than 1.4
to 1.0.
8.19 Capital Expenditures. The Company and its Subsidiaries shall
not make or commit to make Capital Expenditures in an aggregate amount not
to exceed $17,000,000 in any fiscal year; provided, that any such amount
not applied in any fiscal year may be applied in the next succeeding
fiscal year; provided, further, that the Company and its Subsidiaries may
make up to $5,000,000 of additional Capital Expenditures after the date
hereof.
8.20 Restrictive Agreements. The Company shall not, nor shall it
permit any of its Subsidiaries to, enter into any indenture, agreement,
instrument or other arrangement which directly or indirectly prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the ability of any Subsidiary to (a)
pay dividends or make other distributions (i) on its Capital Stock or (ii)
with respect to any other interest or participation in, or measured by,
its profits, (b) make loans or advances to the Company or any Subsidiary,
(c) repay loans or advances from the Company or any Subsidiary or (d)
transfer any of its properties or assets to the Company or any Subsidiary.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of any
L/C Obligation, or (ii) within five (5) days after the same becomes due,
any interest, fee or any other amount payable hereunder or under any other
Loan Document; or
(b) Representation or Warranty. Any representation or
warranty by the Company or any Subsidiary made or deemed made herein or in
any other Loan Document, or contained in any certificate, document or
financial or other statement by the Company, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in or
under any other Loan Document, is incorrect in any material respect on or
as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in any of Section 7.01,
7.02, 7.03 or 7.09 or in Article VIII; or
(d) Other Defaults. The Company or any Subsidiary party
thereto fails to perform or observe any other term or covenant contained
in this Agreement or any other Loan Document, and such default shall
continue unremedied for a period of 30 days after the date upon which
written notice thereof is given to the Company by the Agent or any Lender;
or
(e) Cross-Default. (i) The Company or any Subsidiary
(A) fails to make any payment in respect of any Indebtedness or Contingent
Obligation (other than in respect of Swap Contracts), having an aggregate
principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $5,000,000 when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) and
such failure continues after the applicable grace or notice period, if
any, specified in the relevant document on the date of such failure; or
(B) fails to perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement or
instrument relating to any such Indebtedness or Contingent Obligation, and
such failure continues after the applicable grace or notice period, if
any, specified in the relevant document on the date of such failure if the
effect of such failure, event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause such Indebtedness to be
declared to be due and payable, or to be required to be repurchased,
prior to its stated maturity, or such Contingent Obligation to become
payable or cash collateral in respect thereof to be demanded; (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (1) any event of default under such
Swap Contract as to which the Company or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (2) any Termination Event (as
so defined) arising due to a "Tax Event Upon Merger" or a "Credit Event
Upon Merger" as to which the Company or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value
owed by the Company or such Subsidiary as a result thereof is greater than
$5,000,000; or (iii) the Company or any Subsidiary fails to perform or
observe any condition or covenant under any contract providing for the
issuance of, or reimbursement of amounts in respect of, Surety Instruments
(other than Non-Surety L/C's), which in such event requires the making of
payments in excess of $5,000,000 in the aggregate, net of the proceeds of
insurance policies and indemnity agreements in favor of the Company or any
Subsidiary and received or reasonably expected to be received thereby.
(f) Insolvency; Voluntary Proceedings. The Company or any
Material Subsidiary (i) ceases or fails to be solvent, or generally fails
to pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in
the ordinary course; (iii) commences any Insolvency Proceeding with
respect to itself; or (iv) takes any action to effectuate or authorize any
of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary, or
any writ, judgment, warrant of attachment, execution or similar process,
is issued or levied against a substantial part of the Company's or any
Subsidiary's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60
days after commencement, filing or levy; (ii) the Company or any
Subsidiary admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-
U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Company or
any Subsidiary acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of
its property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company or any ERISA Affiliate
under Title IV of ERISA to such Pension Plan or Multiemployer Plan or to
the PBGC in an aggregate amount for all such Pension Plans and
Multiemployer Plans in excess of $2,000,000; (ii) the aggregate amount of
Unfunded Pension Liability among all Pension Plans and Multiemployer Plans
at any time exceeds $2,000,000 (determined, in respect of Multiemployer
Plans, by reference to the Unfunded Person Liability for which the Company
or any ERISA Affiliate may be liable); or (iii) the Company or any ERISA
Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $2,000,000; or
(i) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is
entered against the Company or any Subsidiary involving in the aggregate a
liability (to the extent not covered by independent third-party insurance
as to which the insurer does not dispute coverage) as to any single or
related series of transactions, incidents or conditions, of $2,500,000 or
more, and the same shall remain unsatisfied, unvacated and unstayed
pending appeal for a period of 10 days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order
or decree is entered against the Company or any Subsidiary which does or
would reasonably be expected to have a Material Adverse Effect, and there
shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(k) Change of Control. There occurs any Change of Control;
or
(l) Loss of Licenses. Any Governmental Authority revokes or
fails to renew any material license, permit or franchise of the Company or
any Material Subsidiary, or the Company or any Material Subsidiary for any
reason loses any material license, permit or franchise, or the Company or
any Material Subsidiary suffers the imposition of any restraining order,
escrow, suspension or impound of funds in connection with any proceeding
(judicial or administrative) with respect to any material license, permit
or franchise; or
(m) Guarantor Defaults. Any Guarantor fails in any material
respect to perform or observe any term, covenant or agreement in the
Subsidiary Guaranty; or the Subsidiary Guaranty is for any reason
partially (including with respect to future advances) or wholly revoked or
invalidated, or otherwise ceases to be in full force and effect, or any
Guarantor or any other Person contests in any manner the validity or
enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at subsections (f) or (g) of
this Section occurs with respect to any Guarantor; or
(n) Invalidity of Subordination Provisions. The
subordination provisions of the Senior Subordinated Debt Documents or any
agreement or instrument governing any other subordinated debt with an
outstanding principal amount of $5,000,000 or more are for any reason
revoked or invalidated, or otherwise cease to be in full force and effect,
any Person contests in any manner the validity or enforceability thereof,
or the Indebtedness hereunder is for any reason subordinated or does not
have the priority contemplated by this Agreement or such subordination
provisions; or
(o) Collateral.
(i) any provision of any Collateral Document shall
for any reason cease to be valid and binding on or enforceable
against the Company or any Subsidiary party thereto or the Company
or any Subsidiary shall so state in writing or bring an action to
limit its obligations or liabilities thereunder; or
(ii) any Collateral Document shall for any reason
(other than pursuant to the terms thereof) cease to create a valid
security interest in the Collateral purported to be covered thereby
or such security interest shall for any reason cease to be a
perfected and first priority security interest subject only to
Permitted Liens.
9.02 Remedies. If any Event of Default has occurred and is
continuing, the Agent shall, at the request of, or may, with the consent
of, the Required Lenders,
(a) declare the Commitment of each Lender to make Loans and
any obligation of the Issuer to Issue Letters of Credit to be terminated,
whereupon such Commitments and obligation shall be terminated;
(b) declare an amount equal to the Dollar Equivalent of the
maximum aggregate amount that is or at any time thereafter may become
available for drawing under any outstanding Letters of Credit (whether or
not any beneficiary shall have presented, or shall be entitled at such
time to present, the drafts or other documents required to draw under such
Letters of Credit) to be immediately due and payable, and declare the
unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under
any other Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in
subsection (f) or (g) of Section 9.01 (in the case of clause (i) of
subsection (g) upon the expiration of the 60-day period mentioned
therein), the obligation of each Lender to make Loans and any obligation
of the Issuer to Issue Letters of Credit shall automatically terminate and
the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable
without further act of the Agent, the Issuer or any Lender.
9.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by
law or in equity, or under any other instrument, document or agreement now
existing or hereafter arising.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization; "Agent". (a) Each Lender
hereby irrevocably (subject to Section 10.09) appoints, designates and
authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise
such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Agent have or be deemed to have any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to the Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) Each Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Agent may agree at
the request of the Required Lenders to act for such Issuer with respect
thereto; provided, however, that such Issuer shall have all of the
benefits and immunities (i) provided to the Agent in this Article X with
respect to any acts taken or omissions suffered by the Issuer in
connection with Letters of Credit Issued by it or proposed to be Issued by
it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term "Agent", as used in this
Article X, included such Issuer with respect to such acts or omissions,
and (ii) as additionally provided in this Agreement with respect to such
Issuer.
10.02 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.03 Liability of Agent. None of the Agent-Related Persons shall
(a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence
or willful misconduct), or (b) be responsible in any manner to any of the
Lenders for any recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in
any certificate, report, statement or other document referred to or
provided for in, or received by the Agent under or in connection with,
this Agreement or any other Loan Document, or for the value of or title to
any Collateral, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of the
Company or any of the Company's Subsidiaries or Affiliates.
10.04 Reliance by Agent. (a) The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company), independent accountants
and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall
in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 5.01, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter either sent by the Agent
to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender.
10.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and
fees required to be paid to the Agent for the account of the Lenders,
unless the Agent shall have received written notice from a Lender or the
Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The Agent
will notify the Lenders of its receipt of any such notice. The Agent
shall take such action with respect to such Default or Event of Default as
may be requested by the Required Lenders in accordance with Article IX;
provided, however, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable or in the best interest of the
Lenders.
10.06 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and
that no act by the Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Lender.
Each Lender represents to the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of the Company and its
Subsidiaries, the value of and title to any Collateral, and all applicable
bank regulatory laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to
the Company hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person 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 and the other Loan
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to
the Lenders by the Agent, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and
other condition or creditworthiness of the Company which may come into the
possession of any of the Agent-Related Persons.
10.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon
demand the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the Company
to do so), in accordance with such Lender's Pro Rata Share of all Loans
and Commitments, from and against any and all Indemnified Liabilities;
provided, however, that no Lender shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified Liabilities
resulting from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender shall reimburse the Agent
upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment
or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities
under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
10.08 Agent in Individual Capacity. BofA and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with
the Company and its Subsidiaries and Affiliates as though BofA were not
the Agent or an Issuer hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, BofA
or its Affiliates may receive information regarding the Company or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and acknowledge
that the Agent shall be under no obligation to provide such information to
them. With respect to its Loans, BofA shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same
as though it were not the Agent or an Issuer.
10.09 Successor Agent. The Agent may, and at the request of the
Required Lenders shall, resign as Agent upon 30 days' notice to the
Lenders. If the Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders
subject, so long as no Event of Default has occurred and is then
continuing, to the consent of the Company, which shall not be unreasonably
withheld or delayed. If no successor agent is appointed prior to the
effective date of the resignation of the Agent, the Agent may appoint,
after consulting with the Lenders and the Company, a successor agent from
among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean
such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article X and
Sections 11.04 and 11.05 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the
date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Agent
hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. Notwithstanding the foregoing,
however, BofA may not be removed as the Agent at the request of the
Required Lenders unless BofA shall also simultaneously be replaced as an
"Issuer" (if any letters of credit Issued by BofA are then outstanding)
hereunder pursuant to documentation in form and substance reasonably
satisfactory to BofA.
10.10 Withholding Tax. (a) (i) If any Lender is a "foreign
corporation, partnership or trust" within the meaning of the Code and such
Lender claims exemption from, or a reduction of, U.S. withholding tax
under Sections 1441 or 1442 of the Code, such Lender agrees with and in
favor of the Agent and the Company, to deliver to the Agent and the
Company:
(A) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty, two
properly completed and executed copies of IRS Form 1001 before the
payment of any interest in the first calendar year and before the
payment of any interest in each third succeeding calendar year
during which interest may be paid under this Agreement;
(B) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of
such Lender, two properly completed and executed copies of IRS Form
4224 before the payment of any interest is due in the first taxable
year of such Lender and in each succeeding taxable year of such
Lender during which interest may be paid under this Agreement; and
(C) such other form or forms as may be required under
the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Agent and the Company of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(ii) If any foreign Lender claims exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", such Lender agrees with and in favor of
the Agent and the Company to deliver to the Agent and the Company a Form
W-8, or any subsequent versions thereof or successors thereto (and, if
such Lender delivers a Form W-8, a certificate representing that such
Lender is not a "bank" for purposes of Section 881(c) of the Code, is not
a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of the Company and is not a controlled foreign corporation
related to the Company (within the meaning of Section 864(d)(4) of the
Code)).
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form
1001 and such Lender sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations of the Company to such
Lender, such Lender agrees to notify the Agent of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Company
to such Lender. To the extent of such percentage amount, the Agent will
treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns,
grants a participation in, or otherwise transfers all or part of the
Obligations of the Company to such Lender, such Lender agrees to undertake
sole responsibility for complying with the withholding tax requirements
imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable withholding
tax after taking into account such reduction. However, if the forms or
other documentation required by subsection (a) of this Section are not
delivered to the Agent, then the Agent may withhold from any interest
payment to such Lender not providing such forms or other documentation an
amount equivalent to the applicable withholding tax imposed by Sections
1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or was not properly
executed, or because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall
indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this
subsection shall survive the payment of all Obligations and the
resignation or replacement of the Agent.
10.11 Collateral Matters. (a) The Agent is authorized on
behalf of all the Lenders, without the necessity of any notice to or
further consent from the Lenders, from time to time to take any action
with respect to any Collateral or the Collateral Documents which may be
necessary to perfect and maintain perfected the security interest in and
Liens upon the Collateral granted pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Agent, at its
option and in its discretion, to release any Lien granted to or held by
the Agent upon any Collateral (i) upon termination of the Commitments and
payment in full of all Loans and all other Obligations known to the Agent
and payable under this Agreement or any other Loan Document;
(ii) constituting property sold or to be sold or disposed of as part of or
in connection with any disposition permitted hereunder; (iii) constituting
property in which the Company or any Subsidiary owned no interest at the
time the Lien was granted or at any time thereafter; (iv) constituting
property leased to the Company or any Subsidiary under a lease which has
expired or been terminated in a transaction permitted under this Agreement
or is about to expire and which has not been, and is not intended by the
Company or such Subsidiary to be, renewed or extended; (v) consisting of
an instrument evidencing Indebtedness or other debt instrument, if the
indebtedness evidenced thereby has been paid in full; or (vi) if approved,
authorized or ratified in writing by the Required Lenders or all the
Lenders, as the case may be, as provided in subsection 11.01(f). Upon
request by the Agent at any time, the Lenders will confirm in writing the
Agent's authority to release particular types or items of Collateral
pursuant to this subsection 10.11(b), provided that the absence of any
such confirmation for whatever reason shall not affect the Agent's rights
under this Section 10.11.
(c) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company or any Subsidiary)
that the Company's obligation to such Lender under this Agreement and the
other Loan Documents is not and shall not be secured by any real property
collateral now or hereafter acquired by such Lender other than the real
property described in the Mortgages.
(c) While an Event of Default has occurred and is continuing,
the Agent shall deliver a "Payment Blockage Notice" (as defined in the
Senior Subordinated Indenture) to the Trustee under the Senior
Subordinated Indenture at the direction or with the consent of the
Required Lenders.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent
with respect to any departure by the Company or any applicable Subsidiary
therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders (or by the Agent at the written request of
the Required Lenders) and the Company and acknowledged by the Agent, and
then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no such waiver, amendment, or consent shall, unless in writing and
signed by all the Lenders and the Company and acknowledged by the Agent,
do any of the following:
(a) increase or extend the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 9.02);
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other
Loan Document including without limitation any mandatory prepayment
required pursuant to subsection 2.07(b);
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (iii) below) any fees
or other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the
Lenders or any of them to take any action hereunder or reduce the
percentage specified in the definition of "Required Lenders" or, without
the consent of each Revolving Lender, "Required Revolving Lenders"; or
(e) amend this Section, or Section 2.16, or any provision
herein providing for consent or other action by all Lenders;
(f) discharge any Guarantor, or release all or any material
portion of the Collateral except as otherwise may be provided in the
Collateral Documents or except where the consent of the Required Lenders
only is specifically provided for;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Issuer in addition to the Required
Lenders or all the Lenders, as the case may be, affect the rights or
duties of the Issuer under this Agreement or any L/C-Related Document
relating to any Letter of Credit Issued or to be Issued by it, (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Required Lenders or all the Lenders, as the case
may be, affect the rights or duties of the Agent under this Agreement or
any other Loan Document, (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Lender in addition to the
Required Lenders or all the Lenders, as the case may be, affect the rights
or duties of the Swing Line Lender under this Agreement or any other Loan
Document, (iv) without limiting clauses (a) through (f) above, no
amendment, waiver or consent shall, unless signed by Lenders holding a
majority of a particular Loan (determined by reference to outstanding
Commitments or, if no Commitments are then outstanding, outstanding
principal amount), affect the rights of such Lenders to receive or defer
payment in respect of such Loan, and (v) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed by the
parties thereto.
11.02 Notices. (a) All notices, requests, consents, approvals,
waivers and other communications shall be in writing (including, unless
the context expressly otherwise provides, by facsimile transmission,
provided that any matter transmitted by the Company by facsimile (i) shall
be immediately confirmed by a telephone call to the recipient at the
number specified on Schedule 11.02, and (ii) shall be followed promptly by
delivery of a hard copy original thereof) and mailed, faxed or delivered,
to the address or facsimile number specified for notices on Schedule
11.02; or, as directed to the Company or the Agent, to such other address
as shall be designated by such party in a written notice to the other
parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and
the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by
facsimile machine, respectively, or if mailed or delivered, upon delivery;
except that notices pursuant to Article II, III or X to the Agent shall
not be effective until actually received by the Agent, and notices
pursuant to Article III to any Issuer shall not be effective until
actually received by such Issuer at the address specified on Schedule
11.02.
(c) Any agreement of the Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Agent and the Lenders
shall be entitled to rely on the authority of any Person identifying
himself or herself as, and reasonably appearing to be, a Person authorized
by the Company to give such notice and the Agent and the Lenders shall not
have any liability to the Company or other Person on account of any action
taken or not taken by the Agent or the Lenders in good faith in reliance
upon such telephonic or facsimile notice. The obligation of the Company
to repay the Loans and L/C Obligations shall not be affected in any way or
to any extent by any failure by the Agent and the Lenders to receive
written confirmation of any telephonic or facsimile notice or the receipt
by the Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Agent and the Lenders to be contained in the
telephonic or facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent and
an Issuer) and the Arranger within five Business Days after demand
(subject to subsection 5.01(e)) for all costs and expenses incurred by
BofA (including in its capacity as Agent and Issuer) and the Arranger in
connection with the development, preparation, delivery, administration,
syndication and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this
Agreement, any Loan Document and any other documents prepared in
connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including reasonable Attorney Costs
incurred by BofA (including in its capacity as Agent and an Issuer) and
the Arranger with respect thereto;
(b) pay or reimburse the Agent, the Arranger and each Lender
within five Business Days after demand (subject to subsection 5.01(e)) for
all costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or preservation of
any rights or remedies under this Agreement or any other Loan Document
during the existence of an Event of Default or after acceleration of the
Loans (including in connection with any "workout" or restructuring
regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding); and
(c) pay or reimburse BofA (including in its capacity as
Agent) within five Business Days after demand (subject to subsection
5.01(e)) for all reasonable appraisal (including the allocated cost of
internal appraisal services), audit, environmental inspection and review
(including the allocated cost of such internal services), search and
filing costs, fees and expenses, incurred or sustained by BofA (including
in its capacity as Agent) in connection with the matters referred to under
subsections (a) and (b) of this Section.
11.05 Company Indemnification. (a) The Company shall indemnify,
defend and hold the Agent-Related Persons, and each Lender and each of its
respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at
any time (including at any time following repayment of the Loans, the
termination of the Letters of Credit and the termination, resignation or
replacement of the Agent or replacement of any Lender or assignment by any
Lender of its Loans or Commitments) be imposed on, incurred by or
asserted against any Indemnified Person arising out of this Agreement or
any document contemplated by or referred to herein, or the transactions
contemplated hereby, or any action taken or omitted by any such Person
under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or Letters of Credit or the use of the proceeds
thereof or related to any Offshore Currency transactions entered into in
connection herewith, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Company shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities resulting from
(i) the gross negligence or willful misconduct of such Indemnified Person
or (ii) any proceeding initiated by the Agent against any Lender (except
to the extent arising from a breach by such Lender of its obligations
hereunder) or by any Lender against the Agent or any other Lender (except
to the extent arising from a breach by the Agent or such Lender, as the
case may be, of its obligations hereunder). The agreements in this Section
shall survive payment of all other Obligations.
(b)(i) The Company shall indemnify, defend and hold harmless each
Indemnified Person, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges,
expenses or disbursements (including Attorney Costs and the allocated cost
of internal environmental audit or review services), which may be incurred
by or asserted against such Indemnified Person in connection with or
arising out of any pending or threatened investigation, litigation or
proceeding, or any action taken by any Person, with respect to any
Environmental Claim arising out of or related to any property, whether or
not subject to a Mortgage in favor of the Agent or any Lender, or arising
out of or related to any operations of the Company or any Subsidiary. No
action taken by legal counsel chosen by the Agent or any Lender in
defending against any such investigation, litigation or proceeding or
requested remedial, removal or response action shall vitiate or any way
impair the Company's obligation and duty hereunder to indemnify and hold
harmless the Agent and each Lender.
(ii) In no event shall any site visit, observation, or testing
by the Agent or any Lender (or any contractee of the Agent or any Lender)
be deemed a representation or warranty that Hazardous Materials are or are
not present in, on, or under, the site, or that there has been or shall be
compliance with any Environmental Law. Neither the Company nor any other
Person is entitled to rely on any site visit, observation, or testing by
the Agent or any Lender. Neither the Agent nor any Lender owes any duty
of care to protect the Company or any other Person against, or to inform
the Company or any other party of, any Hazardous Materials or any other
adverse condition affecting any site or property. The Agent or any Lender
may, at its discretion, disclose to the Company or any other Person any
report or findings made as a result of, or in connection with, any site
visit, observation, or testing by the Agent or any Lender. The Company
understands and agrees that the Agent and the Lenders make no warranty or
representation to the Company or any other Person regarding the truth,
accuracy or completeness of any such report or findings that may be
disclosed. The Company also understands that, depending upon the results
of any site visit, observation or testing by the Agent or any Lender and
disclosed to the Company, the Company may have a legal obligation to
notify one or more environmental agencies of the results and that such
reporting requirements are site-specific and are to be evaluated by the
Company without advice or assistance from the Agent or any Lender.
(c) Survival; Defense. The obligations in this Section shall
survive payment of all other Obligations. At the election of any
Indemnified Person, the Company shall defend such Indemnified Person using
legal counsel satisfactory to such Indemnified Person in such Person's
sole discretion, at the sole cost and expense of the Company. All amounts
owing under this Section shall be paid within 30 days after demand.
11.06 Marshalling; Payments Set Aside. Neither the Agent nor the
Lenders shall be under any obligation to marshall any assets in favor of
the Company or any other Person or against or in payment of any or all of
the Obligations. To the extent that the Company makes a payment to the
Agent or the Lenders, or the Agent or the Lenders exercise their right of
set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Lender in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such
recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Agent.
11.07 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Agent and each Lender.
11.08 Assignments, Participations, etc. (a) Any Lender may, with
the written consent of the Company at all times other than during the
existence of an Event of Default and the Agent, the Swing Line Lender and,
in respect of assignments of Revolving Loans or a Revolving Loan
Commitment, each Issuer with an outstanding Letter of Credit, which
consents shall not be unreasonably withheld or delayed, at any time assign
and delegate to one or more Eligible Assignees (each an "Assignee") all,
or any part of all, of the Loans, the Commitments, the L/C Obligations and
the other rights and obligations of such Lender hereunder, in a minimum
amount of $5,000,000 or, if less, the total amount of such Lender's
outstanding Loans and/or Commitments (provided that (x) no written consent
of the Company, the Agent, the Swing Line Lender or any Issuer shall be
required in connection with any assignment and delegation by a Lender to
an Eligible Assignee that is an Affiliate of such Lender or any Approved
Fund and (y) no consent of the Swing Line Lender or any Issuer shall be
required in respect of any assignment and delegation consisting solely of
Term Loans); provided, however, that the Company and the Agent may
continue to deal solely and directly with such Lender in connection with
the interest so assigned to an Assignee until (i) written notice of such
assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the
Company and the Agent by such Lender and the Assignee; (ii) such Lender
and its Assignee shall have delivered to the Company and the Agent an
Assignment and Acceptance in the form of Exhibit D ("Assignment and
Acceptance") together with any Note or Notes subject to such assignment
and (iii) the assignor Lender or Assignee has paid to the Agent a
processing fee in the amount of $3,500; provided, that in the case of
contemporaneous assignments by a Lender to more than one fund managed by
the same investment advisor, only a single fee of $3,500 shall be payable
for all such contemporaneous assignments.
(b) From and after the date that the Agent notifies the
assignor Lender that it has received (and, if required, provided its
consent with respect to) an executed Assignment and Acceptance and payment
of the above-referenced processing fee, (i) the Assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder
(including without limitation any obligations under Section 10.10) have
been assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Lender under the Loan Documents, and (ii)
the assignor Lender shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by
the Agent that it has received an executed Assignment and Acceptance and
payment of the processing fee, (and, if required, provided that it
consents to such assignment in accordance with subsection 11.08(a)), the
Company shall execute and deliver to the Agent new Notes evidencing such
Assignee's assigned Loans and Commitment and, if the assignor Lender has
retained a portion of its Loans and its Commitment, replacement Notes in
the principal amount of the Loans retained by the assignor Lender (such
Notes to be in exchange for, but not in payment of, the Notes held by such
Lender). Immediately upon each Assignee's making its processing fee
payment under the Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee
shall reduce such Commitments of the assigning Lender pro tanto.
(d) The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders and the Commitments of, and principal amount
of the Loans owing to, each Lender from time to time. The entries in such
register shall be conclusive, in the absence of manifest error, and the
Company, the Agent and the Lenders shall treat each person whose name is
recorded in such register as the owner of the Commitments and the Loans
recorded therein for all purposes of this Agreement. The register shall
be available for inspection by the Company, any Lender and their
representatives, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Any Lender may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Company (a "Participant")
participating interests in any Loans, the Commitment of that Lender and
the other interests of that Lender (the "originating Lender") hereunder
and under the other Loan Documents; provided, however, that (i) the
originating Lender's obligations under this Agreement shall remain
unchanged, (ii) the originating Lender shall remain solely responsible for
the performance of such obligations, (iii) the Company, each Issuer and
the Agent shall continue to deal solely and directly with the originating
Lender in connection with the originating Lender's rights and obligations
under this Agreement and the other Loan Documents, and (iv) no Lender
shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document, except
to the extent such amendment, consent or waiver would require unanimous
consent of the Lenders as described in clause (a) (but only in respect of
any increase of any Commitment of any Originating Lender), (b) or (c) of
the first proviso to Section 11.01. In the case of any such participation,
the Participant shall be entitled to the benefit of Sections 4.01, 4.03
and 11.05 as though it were also a Lender hereunder, and if amounts
outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement.
(f) Notwithstanding any other provision in this Agreement,
(i) any Lender may at any time create a security interest in, or pledge,
all or any portion of its rights under and interest in this Agreement and
the Notes held by it in favor of any Federal Reserve Bank in accordance
with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section
203.14, and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law and (ii) any Lender
that is a fund that invests in bank loans may, without the consent of the
Agent or the Company, pledge all or any portion of its rights under and
interest in this Agreement to any trustee or to any other representative
of holders of obligations owed or securities issued by such fund as
security for such obligations or securities; provided, that any transfer
to any Person upon the enforcement of such pledge or security interest may
only be made subject to Section 11.08.
11.09 Confidentiality. Each Lender agrees to take and to cause
its Affiliates to take normal and reasonable precautions and exercise due
care to maintain the confidentiality of all information provided to it by
the Company or any Subsidiary, or by the Agent on the Company's or such
Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information other
than in connection with or in enforcement of this Agreement and the other
Loan Documents or in connection with other business now or hereafter
existing or contemplated with the Company or any Subsidiary; except to the
extent such information (i) was or becomes generally available to the
public other than as a result of disclosure by the Lender or its
Affiliates, or (ii) was or becomes available on a non-confidential basis
from a source other than the Company, provided that such source is not
bound by a confidentiality agreement with the Company known to the Lender;
provided, however, that any Lender may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority
to which the Lender is subject or in connection with an examination of
such Lender by any such authority; (B) pursuant to subpoena or other court
process; (C) when required to do so in accordance with the provisions of
any applicable Requirement of Law; (D) to the extent reasonably required
in connection with any litigation or proceeding involving the Company to
which the Agent, any Lender or their respective Affiliates may be party;
(E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (F) to such
Lender's independent auditors and other professional advisors; (G) to any
Participant or Assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Lenders hereunder; (H) as to any Lender or its Affiliate,
as expressly permitted under the terms of any other document or agreement
regarding confidentiality to which the Company or any Subsidiary is party
or is deemed party with such Lender or such Affiliate; (I) to its
Affiliates, provided that such Person is advised of the confidentiality
requirements set forth herein; and (J) to the National Association of
Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about such
Lender's investment portfolio in connection with ratings issued with
respect to such Lender.
11.10 Set-off. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists or the Loans have
been accelerated, each Lender is authorized at any time and from time to
time, without prior notice to the Company, any such notice being waived by
the Company to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness at any time owing by,
such Lender to or for the credit or the account of the Company against any
and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Agent or such Lender shall have made
demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured. Each Lender agrees promptly
to notify the Company and the Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application.
11.11 Automatic Debits of Fees. With respect to any commitment
fee, arrangement fee, letter of credit fee or other fee, or any other cost
or expense (including Attorney Costs) due and payable to the Agent, any
Issuer, BofA or the Arranger under the Loan Documents, the Company hereby
irrevocably authorizes BofA to debit any deposit account of the Company
with BofA in an amount such that the aggregate amount debited from all
such deposit accounts does not exceed such fee or other cost or expense;
provided, that so long as no Event of Default has occurred and is
continuing, BofA has given notice to the Company thereof not later than
9:00 a.m. (Chicago time) on the date of such debit. If there are
insufficient funds in such deposit accounts to cover the amount of the fee
or other cost or expense then due, such debits will be reversed so as not
to create an overdraft (in whole or in part, in BofA's sole discretion)
and such amount not debited shall be deemed to be unpaid. No such debit
under this Section shall be deemed a set-off.
11.12 Notification of Addresses, Lending Offices, Etc. Each
Lender shall notify the Agent in writing of any changes in the address to
which notices to the Lender should be directed, of addresses of any
Lending Office, of payment instructions in respect of all payments to be
made to it hereunder and of such other administrative information as the
Agent shall reasonably request.
11.13 Counterparts. This Agreement may be executed in any number
of separate counterparts, each of which, when so executed, shall be deemed
an original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument.
11.14 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
11.15 No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the Company, the
Lenders, the Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect
legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan
Documents.
11.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAW OF THE STATE OF ILLINOIS (WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS THEREOF); PROVIDED THAT THE COMPANY, THE AGENT AND THE LENDERS
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
COMPANY, THE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF
THE COMPANY, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND THE
LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
11.17 WAIVER OF JURY TRIAL. THE COMPANY, THE LENDERS AND THE
AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY
TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-
RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE LENDERS AND THE AGENT
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES
FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
11.18 Judgment. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or under any other
Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures
the Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The
obligation of the Company in respect of any such sum due from it to the
Agent or any Lender hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other
than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the "Agreement Currency"), be
discharged only to the extent that on the Business Day following receipt
by the Agent or such Lender of any sum adjudged to be so due in the
Judgment Currency, the Agent or such Lender may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Agent or such Lender in the Agreement
Currency, the Company agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Agent or such Lender or the Person to
whom such obligation was owing against such loss. If the amount of the
Agreement Currency so purchased is greater than the sum originally due to
the Agent or such Lender in such currency, the Agent or such Lender agrees
to return the amount of any excess to the Company (or to any other Person
who may be entitled thereto under applicable law).
11.19 Entire Agreement. This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among the
Company, the Lenders and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in Chicago, Illinois by their proper and
duly authorized officers as of the day and year first above written.
OSHKOSH TRUCK CORPORATION
By: /s/ Charles L. Szews
Charles L. Szews
Title: Executive Vice President/
Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Agent
By: /s/ David A. Johanson
David A. Johanson
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Lender and as Swing Line
Lender
By: /s/ Ron A. Benishay
Ron A. Benishay
Title: Vice President
ACM CREDIT OPPORTUNITIES MASTER FUND
By: Alliance Capital Management L.P., its
Investment Advisor
By: Alliance Capital Management
Corporation, its General Partner
By: /s/
Title: Vice President
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Patricia W. Wilson
Patricia W. Wilson
By: /s/ Daniel C. Leimbach
Daniel C. Leimbach
Its Authorized Signatories
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc., as
Collateral Manager
By: /s/ Kathleen A. Lenarcic
Kathleen A. Lenarcic
Title: Vice President & Portfolio Manager
THE BANK OF NEW YORK
By: /s/
Title: Assistant Vice President
BANK OF SCOTLAND
By: /s/ Joseph Fratus
Joseph Fratus
Title: Assistant Vice President
BANK ONE, WISCONSIN
By: /s/
Title: Vice President
BANQUE PARIBAS
By: /s/ Brian F. Hewett
Brian F. Hewett
Title: Vice President
By: /s/ Nicholas C. Mast
Nicholas C. Mast
Title: Regional General Manager
COMERICA BANK
By: /s/ Mark B. Grover
Mark B. Grover
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Francoise Berthelot
Francoise Berthelot
Title: Vice President
By: /s/
Title: First Vice President
DELANO COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By: /s/ Raymond Kennedy
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION
By: /s/
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Glenn F. Edwards
Glenn F. Edwards
Title: Senior Vice President
FIRSTAR BANK MILWAUKEE, N.A.
By: /s/
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
Peter L. Chinnici
Title: Joint General Manager
HARRIS TRUST AND SAVINGS BANK
By: /s/
Title: Vice President
JACKSON NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as its attorney in
fact, on behalf of Jackson National
Life Insurance Company
By: /s/ William T. Considine
William T. Considine
Title: Managing Director
LASALLE NATIONAL BANK
By: /s/
Title: Senior Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE CO.
By: /s/
Title: Managing Director
MASSMUTUAL HIGH YIELD PARTNERS LLC
By: HYP Management, Inc., as Managing
Member
By: /s/ Mary Ann McCarthy
Mary Ann McCarthy
Title: Managing Director
M&I MARSHALL & ILSLEY BANK
By: /s/
Title: Senior Vice President
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ John R. Dingler
John R. Dingler
Title: Director
NATIONSBANK, N.A.
By: /s/
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/
Title: Vice President
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(a Unit of The Chase Manhattan Bank)
By: /s/ Richard W. Stewart
Richard W. Stewart
Title: Managing Director
PILGRIM AMERICA PRIME RATE TRUST
By: Pilgrim America Investments, Inc., as
its Investment Manager
By: /s/
Title: Assistant Portfolio Manager
RELIASTAR LIFE INSURANCE COMPANY
By: ING Capital Advisors, Inc., as
Investment Advisor
By: /s/ Kathleen A. Lenarcic
Kathleen A. Lenarcic
Title: Vice President & Portfolio Manager