EXHIBIT 10.4
EXECUTION COPY
U.S. $53,750,000
SHORT TERM REVOLVING CREDIT AGREEMENT,
dated as of September 28, 1994
among
HANDY & HARMAN,
as the Borrower,
CERTAIN FINANCIAL INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA,
CHEMICAL BANK
and
THE BANK OF NEW YORK,
as the Co-Agents,
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent.
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms . . . . . . . . . . . . . . . . . .
1.2. Use of Defined Terms . . . . . . . . . . . . . .
1.3. Cross-References . . . . . . . . . . . . . . . .
1.4. Accounting and Financial Determinations; No
Duplication; Consolidation . . . . . . . . . .
ARTICLE II
COMMITMENTS, BORROWING AND BIDDING
PROCEDURES AND NOTES
2.1. Commitments . . . . . . . . . . . . . . . . . . .
2.1.1. Revolving Loan Commitment . . . . . . . . . . . .
2.1.2. Swing Line Loan Commitment . . . . . . . . . . .
2.1.3. Lenders Not Permitted or Required to Make
Revolving Loans or Swing Line Loans . . . . . .
2.2. Reduction of Commitments . . . . . . . . . . . .
2.3. Revolving Loan and Swing Line Loan Borrowing
Procedure and Funding Maintenance . . . . . . .
2.3.1. Continuation and Conversion Elections . . . . . .
2.3.2. Funding . . . . . . . . . . . . . . . . . . . . .
2.4. Competitive Bid Loans . . . . . . . . . . . . . .
2.5. Notes . . . . . . . . . . . . . . . . . . . . . .
2.6. Extension of Stated Maturity Date and Maturity of
Loans . . . . . . . . . . . . . . . . . . . . .
2.6.1. Request for Extension of Stated Maturity Date and
Maturity of Loans . . . . . . . . . . . . . . .
2.6.2. Consent to Extension of Stated Maturity Date and
Maturity of Loans . . . . . . . . . . . . . . .
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments . . . . . . . . . . .
3.1.1. Final Maturity . . . . . . . . . . . . . . . . .
3.1.2. Voluntary Prepayments . . . . . . . . . . . . . .
3.1.3. Mandatory Prepayments . . . . . . . . . . . . . .
3.1.4. Acceleration of Stated Maturity Date . . . . . .
3.2. Interest Provisions . . . . . . . . . . . . . . .
3.2.1. Rates . . . . . . . . . . . . . . . . . . . . . .
3.2.2. Post-Maturity Rates . . . . . . . . . . . . . . .
3.2.3. Payment Dates . . . . . . . . . . . . . . . . . .
3.3. Fees . . . . . . . . . . . . . . . . . . . . . .
3.3.1. Commitment Fee . . . . . . . . . . . . . . . . .
3.3.2. Agents' Fee . . . . . . . . . . . . . . . . . . .
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful . . . . . . . . . . .
4.2. Deposits Unavailable . . . . . . . . . . . . . .
4.3. Increased LIBO Rate Loan Costs, etc. . . . . . .
4.4. Funding Losses . . . . . . . . . . . . . . . . .
4.5. Increased Capital Costs . . . . . . . . . . . . .
4.6. Taxes . . . . . . . . . . . . . . . . . . . . . .
4.7. Payments, Computations, etc. . . . . . . . . . .
4.8. Sharing of Payments . . . . . . . . . . . . . . .
4.9. Setoff . . . . . . . . . . . . . . . . . . . . .
4.10. Use of Proceeds . . . . . . . . . . . . . . . . .
4.11. Replacement of Lenders . . . . . . . . . . . . .
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension . . . . . . . . . . . .
5.1.1. Resolutions, etc. . . . . . . . . . . . . . . . .
5.1.2. Delivery of Notes . . . . . . . . . . . . . . . .
5.1.3. Payment of Outstanding Indebtedness, etc. . . . .
5.1.4. Opinions of Counsel . . . . . . . . . . . . . . .
5.1.5. Closing Fees, Expenses, etc. . . . . . . . . . .
5.1.6. Termination of Existing Agreement . . . . . . . .
5.2. All Credit Extensions . . . . . . . . . . . . . .
5.2.1. Compliance with Warranties, No Default, etc. . .
5.2.2. Borrowing Request . . . . . . . . . . . . . . . .
5.2.3. Satisfactory Legal Form . . . . . . . . . . . . .
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc. . . . . . . . . . . . . . . .
6.2. Due Authorization, Non-Contravention, etc. . . .
6.3. Government Approval, Regulation, etc. . . . . . .
6.4. Validity, etc. . . . . . . . . . . . . . . . . .
6.5. Financial Information . . . . . . . . . . . . . .
6.6. No Material Adverse Change . . . . . . . . . . .
6.7. Litigation, etc. . . . . . . . . . . . . . . . .
6.8. Subsidiaries . . . . . . . . . . . . . . . . . .
6.9. Ownership of Properties . . . . . . . . . . . . .
6.10. Taxes . . . . . . . . . . . . . . . . . . . . . .
6.11. Pension and Welfare Plans . . . . . . . . . . . .
6.12. Environmental Warranties . . . . . . . . . . . .
6.13. Regulations G, U and X . . . . . . . . . . . . .
6.14. Accuracy of Information . . . . . . . . . . . . .
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants . . . . . . . . . . . . . .
7.1.1. Financial Information, Reports, Notices, etc. . .
7.1.2. Compliance with Laws, etc. . . . . . . . . . . .
7.1.3. Maintenance of Properties . . . . . . . . . . . .
7.1.4. Insurance . . . . . . . . . . . . . . . . . . . .
7.1.5. Books and Records . . . . . . . . . . . . . . . .
7.1.6. Environmental Covenant . . . . . . . . . . . . .
7.2. Negative Covenants . . . . . . . . . . . . . . .
7.2.1. Business Activities . . . . . . . . . . . . . . .
7.2.2. Designated Debt, Letters of Credit; Subsidiary
Debt . . . . . . . . . . . . . . . . . . . . .
7.2.3. Liens . . . . . . . . . . . . . . . . . . . . . .
7.2.4. Financial Condition . . . . . . . . . . . . . . .
7.2.5. Investments . . . . . . . . . . . . . . . . . . .
7.2.6. Restricted Payments, etc. . . . . . . . . . . . .
7.2.7. Transactions with Affiliates . . . . . . . . . .
7.2.8. Long Term Rental Obligations . . . . . . . . . .
7.2.9. Take or Pay Contracts . . . . . . . . . . . . . .
7.2.10. Consolidation, Merger, etc. . . . . . . . . . . .
7.2.11. Asset Dispositions, etc. . . . . . . . . . . . .
7.2.12. Restrictive Agreements, etc. . . . . . . . . . .
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default . . . . . . . . . .
8.1.1. Non-Payment of Obligations . . . . . . . . . . .
8.1.2. Breach of Warranty . . . . . . . . . . . . . . .
8.1.3. Non-Performance of Certain Covenants and
Obligations . . . . . . . . . . . . . . . . . .
8.1.4. Non-Performance of Other Covenants and
Obligations . . . . . . . . . . . . . . . . . .
8.1.5. Default on Other Indebtedness or Agreements . . .
8.1.6. Judgments . . . . . . . . . . . . . . . . . . . .
8.1.7. Pension Plans . . . . . . . . . . . . . . . . . .
8.1.8. Control of the Borrower . . . . . . . . . . . . .
8.1.9. Bankruptcy, Insolvency, etc. . . . . . . . . . .
8.2. Action if Bankruptcy . . . . . . . . . . . . . .
8.3. Action if Other Event of Default . . . . . . . .
ARTICLE IX
THE AGENTS
9.1. Actions . . . . . . . . . . . . . . . . . . . . .
9.2. Funding Reliance, etc. . . . . . . . . . . . . .
9.3. Exculpation . . . . . . . . . . . . . . . . . . .
9.4. Successor . . . . . . . . . . . . . . . . . . . .
9.5. Credit Extensions by an Agent. . . . . . . . . .
9.6. Credit Decisions . . . . . . . . . . . . . . . .
9.7. Copies, etc. . . . . . . . . . . . . . . . . . .
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc. . . . . . . . . . . . .
10.2. Notices . . . . . . . . . . . . . . . . . . . . .
10.3. Payment of Costs and Expenses . . . . . . . . . .
10.4. Indemnification . . . . . . . . . . . . . . . . .
10.5. Survival . . . . . . . . . . . . . . . . . . . .
10.6. Severability . . . . . . . . . . . . . . . . . .
10.7. Headings . . . . . . . . . . . . . . . . . . . .
10.8. Execution in Counterparts, Effectiveness, etc. .
10.9. Governing Law; Entire Agreement . . . . . . . . .
10.10. Successors and Assigns . . . . . . . . . . . . .
10.11. Sale and Transfer of Loans and Note;
Participations in Loans and Note . . . . . . .
10.11.1. Assignments . . . . . . . . . . . . . . . . . . .
10.11.2. Participations . . . . . . . . . . . . . . . . .
10.12. Other Transactions . . . . . . . . . . . . . . .
10.13. Forum Selection and Consent to Jurisdiction . . .
10.14. Waiver of Jury Trial . . . . . . . . . . . . . .
SCHEDULE I Disclosure Schedule
EXHIBIT A-1 Form of Revolving Loan Note
EXHIBIT A-2 Form of Competitive Bid Loan Note
EXHIBIT A-3 Form of Swing Line Loan Note
EXHIBIT B-1 Form of Revolving Loan Borrowing Request
EXHIBIT B-2 Form of Competitive Bid Loan Borrowing Request
EXHIBIT C-1 Form of Invitation for Bid Loan Quotes
EXHIBIT C-2 Form of Competitive Bid Loan Offer
EXHIBIT C-3 Form of Competitive Bid Loan Acceptance
EXHIBIT D Form of Lender Assignment Agreement
EXHIBIT E Form of Compliance Certificate
EXHIBIT F Form of Continuation/Conversion Notice
EXHIBIT G Form of Extension Request
EXHIBIT H Form of Opinion of Counsel to the Borrower
EXHIBIT I Form of Opinion of Counsel to the Administrative
Agent
SHORT TERM REVOLVING CREDIT AGREEMENT
THIS SHORT TERM REVOLVING CREDIT AGREEMENT, dated as of
September 28, 1994, among HANDY & HARMAN, a New York corporation
(the "Borrower"), the various financial institutions as are or
may become parties hereto (collectively, the "Lenders"), THE BANK
OF NOVA SCOTIA ("Scotiabank"), CHEMICAL BANK ("Chemical") and THE
BANK OF NEW YORK ("BONY"), as co-agents (in such capacity,
individually referred to as a "Co-Agent" and collectively
referred to as the "Co-Agents"), and Scotiabank, as
administrative agent (in such capacity, together with any
successor appointed pursuant to Section 9.4, the "Administrative
Agent") for the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower is engaged directly and through its
various Subsidiaries in the businesses described in the
Borrower's Annual Report on Form 10-K for the 1993 Fiscal Year;
WHEREAS, the Borrower desires to obtain Commitments from the
Lenders pursuant to which Revolving Loans and Swing Line Loans,
in a maximum aggregate principal and stated amount at any one
time outstanding not to exceed $53,750,000, will be made to the
Borrower from time to time prior to the Loan Commitment
Termination Date;
WHEREAS, the Borrower also desires the Lenders to provide a
procedure pursuant to which the Borrower may invite the Lenders
to bid for (on an uncommitted basis) and to make short-term loans
(in the form of Competitive Bid Loans) to the Borrower;
WHEREAS, the Lenders are willing, on the terms and subject
to the conditions hereinafter set forth (including Article V), to
(a) extend such Commitments;
(b) make Revolving Loans to the Borrower; and
(c) provide such a procedure to make Competitive Bid
Loans;
WHEREAS, the Swing Line Lender is willing, on the terms and
subject to the conditions hereinafter set forth (including
Article V), to
(a) extend the Swing Line Loan Commitment; and
(b) make Swing Line Loans to the Borrower; and
WHEREAS, the proceeds of such Credit Extensions will be used
to refinance in full all amounts under the Existing Agreement and
for the general corporate purposes of the Borrower and its
Subsidiaries;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether
or not underscored) when used in this Agreement, including its
preamble and recitals, shall, except where the context otherwise
requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"Absolute Rate" means, with respect to an Absolute Rate Loan
made by a given Lender, a fixed rate of interest per annum
(rounded to the nearest 1/100th of 1%) offered by such Lender and
accepted by the Borrower.
"Absolute Rate Auction" means a solicitation of Competitive
Bid Loan quotes at an Absolute Rate pursuant to Section 2.4.
"Absolute Rate Loan" means a Competitive Bid Loan which
bears interest at an Absolute Rate.
"Adjusted Consolidated Tangible Net Worth" means the sum of
(a) Consolidated Tangible Net Worth
plus
(b) 40% of the excess of the Market Value of the
Borrower's and its Subsidiaries' owned precious metal
holdings over the LIFO cost of such holdings as set forth in
the Borrower's consolidated financial statements delivered
to the Lenders pursuant to clause (a) or (b) of Section
7.1.1.
"Administrative Agent" is defined in the preamble.
"Affected LIBO Lender" is defined in Section 4.3.
"Affiliate" means, with respect to any Person, any other
Person which, directly or indirectly, controls, is controlled by
or is under common control with such Person (excluding any
trustee under, or any committee with responsibility for
administering, any Plan); provided, that none of Mario Gabelli,
Gabelli Funds, Inc., Gamco Investors, Inc., Gabelli & Company,
Inc. or Gabelli Performance Partnership shall be considered an
"Affiliate" of the Borrower. "Control" and its derivatives means
the power, directly or indirectly,
(a) to vote 10% or more of the securities or other
ownership or beneficial interests (on a fully diluted basis)
having ordinary voting power for the election of directors
or managing general partners of any Person; or
(b) to direct or cause the direction of the management
and policies of such Person whether by contract or
otherwise.
"Agent" means, as the context may require, either
Scotiabank, BONY or Chemical, acting in their capacity as
Co-Agent, or Administrative Agent.
"Agreement" means, on any date, this Short Term Revolving
Credit Agreement as originally in effect on the Effective Date
and as thereafter from time to time amended, restated,
supplemented, amended and restated, or otherwise modified and in
effect on such date.
"Alternate Base Rate" means, on any date and with respect to
all Base Rate Loans, a fluctuating rate of interest per annum
equal to the higher of
(a) the rate of interest most recently established by
Scotiabank at its Domestic Office as its base rate for
Dollar loans in the United States; and
(b) the Federal Funds Rate for such date plus 1/2 of
1%.
The Alternate Base Rate is not necessarily intended to be the
lowest rate of interest determined by Scotiabank in connection
with extensions of credit. Changes in the rate of interest on
any Loans or other Obligations accruing interest at the Alternate
Base Rate will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give prompt
notice to the Borrower and the Lenders of changes in the
Alternate Base Rate.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means those officers of the Borrower
whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Revolving Loan or Swing Line Loan
bearing interest at a fluctuating rate determined by reference to
the Alternate Base Rate.
"BONY" is defined in the preamble.
"Borrower" is defined in the preamble.
"Borrowing" means, as the context may require, either a
Competitive Bid Loan Borrowing, a Swing Line Loan Borrowing or a
Revolving Loan Borrowing.
"Borrowing Request" means, as the context may require,
either a Revolving Loan Borrowing Request or a Competitive Bid
Loan Borrowing Request.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to
be closed in New York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans or Competitive Bid Loans
made as a result of a LIBOR Auction, any day on which
dealings in Dollars are carried on in the London interbank
market.
"Capital Expenditures" means, for any period, the aggregate
amount of all expenditures of the Borrower and its Subsidiaries
for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital
expenditures, including the aggregate amount of all Capitalized
Lease Liabilities incurred during such period.
"Capitalized Lease Liabilities" means all monetary
obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP,
would be classified as capitalized leases, and, for purposes of
this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined
in accordance with GAAP.
"Cash Equivalent Investment" means, at any time:
(a) any obligation issued or guaranteed by the United
States Government or any agency thereof, maturing not more
than one year after such time;
(b) commercial paper, maturing not more than nine
months from the date of issue, which is issued by
(i) a corporation (other than the Borrower or an
Affiliate of the Borrower) organized under the laws of
any state of the United States or of the District of
Columbia and rated A-1 by Standard & Poor's Corporation
or P-1 by Moody's Investors Service, Inc., or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is
issued by either
(i) a commercial banking institution that is a
member of the Federal Reserve System and has total
assets of not less than $5,000,000,000 and commercial
paper rated A-1 by Standard & Poor's Corporation or P-1
by Moody's Investors Service, Inc., or
(ii) any Lender; or
(d) any repurchase agreement entered into with any
Lender (or other commercial banking institution of the
stature referred to in clause (c)(i)) which
(i) is secured by a fully perfected security
interest (which may be hold in custody, tri-party
custodian or deliver out) in any obligation of the type
described in any of clauses (a) through (c), and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation of such Lender (or
other commercial banking institution) thereunder.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Change in Control" means the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 20% or
more of the outstanding shares of voting stock of the Borrower.
"Chemical" is defined in the preamble.
"Co-Agent" is defined in the preamble.
"Co-Agents" is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commitment" means, as the context may require, the
Revolving Loan Commitment or the Swing Line Loan Commitment.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses
(a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event
of Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the
giving of notice by the Administrative Agent, acting at
the direction of the Required Lenders, to the Borrower
that the Commitments have been terminated.
"Competitive Bid Loan" means a loan made by a Lender to the
Borrower based on the LIBO Rate or the Absolute Rate as part of a
Competitive Bid Loan Borrowing resulting from the procedure
described in Section 2.4.
"Competitive Bid Loan Acceptance" means an acceptance by the
Borrower of a Competitive Bid Loan Offer pursuant to clause (e)
of Section 2.4, substantially in the form of Exhibit C-3 attached
hereto.
"Competitive Bid Loan Borrowing" means Competitive Bid Loans
made pursuant to the same Competitive Bid Loan Request by the
Lender or each of the Lenders whose offer to make such
Competitive Bid Loans as part of such requested Borrowing has
been accepted by the Borrower pursuant to clause (e) of Section
2.4.
"Competitive Bid Loan Borrowing Request" means a certificate
requesting that the Lenders extend offers to make Competitive Bid
Loans, duly executed by an Authorized Officer substantially in
the form of Exhibit B-2 attached hereto.
"Competitive Bid Loan Maturity Date" is defined in
clause (a)(iii) of Section 2.4.
"Competitive Bid Loan Note" means any promissory note of the
Borrower, in the form of Exhibit A-2 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to
such Lender resulting from Competitive Bid Loans outstanding from
such Lender, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Competitive Bid Loan Offer" means an offer by a Lender to
make a Competitive Bid Loan pursuant to clause (c) of
Section 2.4, substantially in the form of Exhibit C-2 attached
hereto.
"Competitive Bid Outstanding Balance" means, at any time,
the then aggregate outstanding principal amount of all
Competitive Bid Loans.
"Competitive Bid Rate" means, as the context may require,
either the Absolute Rate or the LIBO Rate (plus the LIBO Rate Bid
Margin) offered by a Lender in a Competitive Bid Loan Offer in
respect of a Competitive Bid Loan proposed pursuant to Section
2.4.
"Compliance Certificate" means a certificate duly executed
and delivered by an Authorized Officer pursuant to Section 7.1.1,
in substantially the form of Exhibit E hereto.
"Consignment Facilities" means, collectively, (i) the Fee
Consignment Agreement dated as of the date hereof between the
Borrower (as consignee) and Scotiabank (as consignor), (ii) the
Short-Term Fee Consignment Agreement dated as of the date hereof
between the Borrower (as consignee) and Scotiabank (as
consignor), (iii) the Dollar Supply Agreement dated as of the
date hereof among the Borrower (as consignee), Scotiabank (as
consignor), the financial institutions parties thereto,
Scotiabank, BONY and Chemical Bank as the co-agents, and
Scotiabank as the administrative agent and (iv) the Short-Term
Dollar Supply Agreement dated as of the date hereof among the
Borrower (as consignee), Scotiabank (as consignor), the financial
institutions parties thereto, Scotiabank, BONY and Chemical Bank
as the co-agents, and Scotiabank as the administrative agent, in
each case as such agreements may be amended, supplemented,
amended and restated or otherwise modified pursuant to the terms
thereof.
"Consolidated Tangible Net Worth" means the excess of
(a) the sum of
(i) the par value (or value stated on the books
of the Borrower) of the capital stock of all classes of
the Borrower, plus (or minus in the case of a surplus
deficit),
(ii) the amount of the consolidated surplus,
whether capital or earned, of the Borrower and its
Subsidiaries
over
(b) the sum of
(i) treasury stock, subscribed but unissued
stock, unamortized debt discount and expense, good
will, trademarks, trade names, patents and other
intangible assets (but not deferred charges) of the
Borrower, and
(ii) all write-ups in the book value of any
assets owned by the Borrower or its Subsidiaries
subsequent to March 16, 1992, other than write-ups of
assets (and assets of Subsidiaries) acquired by the
Borrower and/or its Subsidiaries (exclusive of
goodwill) that are made in connection with the
acquisition thereof.
"Contingent Liability" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon or with respect to (by
direct or indirect agreement, contingent or otherwise, to provide
funds for payment (including an agreement to cause a letter of
credit to be issued for the benefit of another Person), to supply
funds to, or otherwise to invest in, a debtor, or otherwise to
assure a creditor against loss, including an agreement to
purchase, sell or lease (as lessee or lessor) property, products,
materials or supplies or services for the purpose of enabling a
debtor to make payment of its obligations) the Indebtedness,
obligation or any other liability, net worth, working capital or
earnings of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of
any other Person. The amount of any Person's obligation under
any Contingent Liability shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount
(or maximum principal amount, if larger) of the debt, obligation
or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of
continuation or conversion and certificate duly executed by an
Authorized Officer, substantially in the form of Exhibit F
attached hereto.
"Controlled Group" means all members of a controlled group
of corporations and all members of a controlled group of trades
or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single
employer under Section 414(b) or 414(c) of the Code or Section
4001 of ERISA.
"Credit Extension" means, the making of a Loan by a Lender.
"Current Debt" means the aggregate amount of current
maturities of the consolidated Debt of the Borrower and its
Subsidiaries including, the Loans (but excluding the Loans (as
defined in the Long Term Credit Agreement) and Debt, if any,
under the Consignment Facilities), determined in accordance with
GAAP.
"Debt" means (i) the outstanding principal and stated amount
of the consolidated Indebtedness of the Borrower and its
Subsidiaries of the nature referred to in clauses (a), (b) and
(c) of the definition of "Indebtedness" and, without duplication,
(ii) any Contingent Liabilities of the Borrower and its
Subsidiaries in respect of any types of the Indebtedness
described in clause (i) above, other than Contingent Liabilities
under the Consignment Facilities; provided, however, that "Debt"
shall not include Indebtedness of Non-Recourse Joint Ventures.
"Default" means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
"Designated Debt" means the aggregate amount of (i) Current
Debt, and (ii) outstanding Loans and Letter of Credit
Outstandings (as such terms are defined in the Long Term Credit
Agreement).
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or
otherwise modified from time to time by the Borrower with the
written consent of the Administrative Agent and the Required
Lenders.
"Dollar" and the symbol "$" mean lawful money of the United
States.
"Domestic Office" means, relative to any Lender, the office
of such Lender designated as such below its signature hereto or
designated in the Lender Assignment Agreement or such other
office of a Lender (or any successor or assign of such Lender)
within the United States as may be designated from time to time
by notice from such Lender, as the case may be, to each other
party hereto.
"EBIT" shall mean, for any period, the sum for such period
of all amounts which, in accordance with GAAP, would be included
on the consolidated financial statements of the Borrower and its
Subsidiaries as
(a) Net Income;
plus
(b) Interest Expense;
plus
(c) to the extent deducted in determining Net Income,
provisions for income taxes.
"Effective Date" means the date this Agreement becomes
effective pursuant to Section 10.8.
"Eligible Receivable" shall mean any Receivable of the
Borrower or any of its Subsidiaries which:
(a) is lawfully owned by the Borrower or such
Subsidiary free and clear of any Lien (other than Liens
permitted under Section 7.2.3);
(b) is a valid, binding and legally enforceable
obligation of the obligor under such Receivable;
(c) is not subject to any dispute, setoff,
counterclaim, or other claim or defense on the part of the
obligor thereunder, and is not subject to an obligor denying
liability under such Receivable in whole or in part;
(d) is a bona fide Receivable arising from the sale
(on an absolute, and not a consignment, approval, or sale-
and-return basis, it being understood that the exchange of
damaged goods by the Borrower or any of its Subsidiaries in
the ordinary course of its business consistent with past
practice shall not constitute any such consignment, approval
or sale and return basis) of goods by the Borrower or such
Subsidiary, in the ordinary course of its business, which
goods have been shipped or delivered to the obligor
thereunder;
(e) is payable not more than 90 days after the
shipping of goods giving rise to such Receivable, and is not
more than 60 days past due;
(f) has not been written off or reserved against; and
(g) is the obligation of an obligor which is neither:
(i) an Affiliate of the Borrower, nor
(ii) the subject of any reorganization,
bankruptcy, receivership, custodianship, insolvency or
other like proceeding, or any other event of the nature
set forth in clauses (a) through (d) of Section 8.1.9;
provided, that notwithstanding the foregoing, "Eligible
Receivable" shall also include 75% of the amount of the GO/DAN
Receivable.
"Environmental Laws" means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and
guidelines (including consent decrees and administrative orders)
relating to public health and safety and protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA also
refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Existing Agreement" means the Short Term Revolving Credit
Agreement, dated as of March 16, 1992 (as amended or otherwise
modified from time to time prior to the Effective Date), among
the Borrower, certain financial institutions parties thereto, The
Bank of Nova Scotia, The Chase Manhattan Bank, N.A. and Chemical
Bank as the co-agents and The Bank of Nova Scotia, as
administrative agent.
"Extension Request" means an extension request duly executed
by an Authorized Officer, substantially in the form of Exhibit G
hereto.
"Federal Funds Rate" means, for any day, a fluctuating
interest rate per annum equal for such day to the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a
Business Day in the City of New York, for the next preceding
Business Day) by the Federal Reserve Bank of New York; provided,
however, that if such rate is not so published for any day which
is a Business Day in the City of New York, the rate for such day
shall be the average of the quotations for such day on such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Fee Letter" means the confidential letter agreement, dated
as of June 28, 1994, as modified by the letter agreement dated
July 29, 1994, each by and between the Borrower and Scotiabank
and as further amended, restated, supplemented, amended and
restated or otherwise modified from time to time.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive
calendar months ending on December 31; references to a Fiscal
Year with a number corresponding to any calendar year (e.g. the
"1993 Fiscal Year") refer to the Fiscal Year ending on the
December 31 occurring during such calendar year.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"GO/DAN Receivable" means the Receivable owing to the
Borrower on the Effective Date (i) of which GO/DAN Industries is
the account obligor and (ii) which on the Effective Date had a
principal balance of $8,078,571, as such amount may be reduced by
payments thereon from time to time (but not increased in any
manner).
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act;
(c) any crude oil or petroleum or any fraction
thereof;
(d) asbestos, radioactive materials or polychlorinated
biphenyls in any form of condition; or
(e) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within
the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent
decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and
similar agreements and arrangements entered into in respect of
interest rates, and all hedging agreements or arrangements
entered into in respect of fluctuations in currency exchange
rates.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to
this Agreement or such other Loan Document, as the case may be,
as a whole and not to any particular Section, paragraph or
provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion
or certification of any independent public accountant as to any
financial statement of the Borrower, any qualification or
exception to such opinion or certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination
of matters relevant to such financial statement; or
(c) which relates to the treatment or classification
of any item in such financial statement and which, as a
condition to its removal, would require an adjustment to
such item the effect of which would be to cause the Borrower
to be in default of any of its obligations under Section
7.2.4.
"including" means including without limiting the generality
of any description preceding such term, and, for purposes of this
Agreement and each other Loan Document, the parties hereto agree
that the rule of ejusdem generis shall not be applicable to limit
a general statement, which is followed by or referable to an
enumeration of specific matters or to matters specifically
mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations (without duplication of
obligations set forth in clause (a)), contingent or
otherwise, relative to the face amount of all letters of
credit, whether or not drawn, and banker's acceptances
issued for the account of such Person;
(c) all obligations of such Person as lessee under
leases which have been or should be, in accordance with
GAAP, recorded as Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP,
would be included as liabilities on the liability side of
the balance sheet of such Person as of the date at which
Indebtedness is to be determined (other than deferred
taxes);
(e) net liabilities of such Person under all Hedging
Obligations;
(f) to the extent included as liabilities in
accordance with GAAP, all obligations of such Person to pay
the deferred purchase price of property or services, and
indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or
other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is
limited in recourse; and
(g) all Contingent Liabilities of such Person in
respect of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any
Person shall not include the Indebtedness of a Non-Recourse Joint
Venture.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interest Coverage Ratio" means, at the close of any Fiscal
Quarter, the ratio, computed for the period consisting of such
Fiscal Quarter and each of the three immediately preceding Fiscal
Quarters, of
(a) EBIT
to
(b) Interest Expense.
"Interest Expense" means, for any period, the aggregate
amount of interest expense of the Borrower and its Subsidiaries
for such period which, in accordance with GAAP, would be included
on the consolidated financial statements of the Borrower,
including without limitation the portion of any rent paid on
Capitalized Lease Liabilities which is allocable to interest
expense in accordance with GAAP and including fees or rents
arising from or relating to consignment or leasing of precious
metals other than up-front fees paid on the Effective Date to the
Lenders. Any such interest expense which is subject to a Hedging
Obligation will be calculated on the net effect of any payments
made by the other party to such Hedging Obligation.
"Interest Period" means
(a) relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO
Rate Loan is made or continued as, or converted into, a LIBO
Rate Loan pursuant to Section 2.3 or 2.3.1 and shall end on
(but exclude) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such
month has no numerically corresponding day, on the last
Business Day of such month), as the Borrower may select in
its relevant notice pursuant to Section 2.3 or 2.3.1;
provided, however, that
(i) Interest Periods commencing on the same date
for Revolving Loans comprising part of the same
Borrowing shall be of the same duration,
(ii) if such Interest Period would otherwise end
on a day which is not a Business Day, such Interest
Period shall end on the next following Business Day;
provided, however, that if such next following Business
Day is the first Business Day of a calendar month, such
Interest Period shall end on the next preceding
Business Day, and
(iii) no Interest Period may end later than the
Stated Maturity Date; and
(b) relative to each Competitive Bid Loan made at a
LIBOR Auction, the period commencing on the date of such
Borrowing and ending one, two, three or six months
thereafter, as the Borrower may elect in accordance with
Section 2.4; provided that:
(i) if such Interest Period would otherwise end
on a day which is not a Business Day, such Interest
Period shall end on the next following Business Day;
provided, however, that if such next following Business
Day is the first Business Day of a calendar month, such
Interest Period shall end on the next preceding
Business Day, and
(ii) no Interest Period may end later than the
Stated Maturity Date.
No more than five Interest Periods shall be in effect at any one
time.
"Investment" means any investment in any Person, whether by
means of share purchase, capital, equity or similar contribution,
loan, advance, time deposit or otherwise (excluding commission,
travel and similar advances to officers and employees made in the
ordinary course of business). The amount of any Investment shall
be the original principal or capital amount thereof less all
returns of principal or equity thereon (and without adjustment by
reason of the financial condition of such other Person) and
shall, if made by the transfer or exchange of property other than
cash, be deemed to have been made in an original principal or
capital amount equal to the fair market value of such property,
as reasonably determined in good faith by the Borrower at the
time of such transfer or exchange.
"Invitation for Bid Loan Quotes" means an Invitation for Bid
Loan Quotes delivered by the Administrative Agent to the Lenders
pursuant to clause (b) of Section 2.4, in substantially the form
of Exhibit C-1 hereto.
"Lender Assignment Agreement" means a Lender Assignment
Agreement substantially in the form of Exhibit D attached hereto.
"Lenders" is defined in the preamble.
"Letters of Credit to be Replaced" means those letters of
credit listed on Item 1.1 ("Letters of Credit to be Replaced") of
the Disclosure Schedule which are outstanding on the Effective
Date which are to be replaced with Letters of Credit (as defined
in the Long Term Credit Agreement).
"Leverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) Debt (other than obligations (contingent or
otherwise) relative to the face amount of all letters of
credit, whether or not drawn, issued for the account of the
Borrower and its Subsidiaries)
to
(b) Adjusted Consolidated Tangible Net Worth.
"LIBO Rate" is defined in Section 3.2.1.
"LIBO Rate Bid Margin" means, in respect of Competitive Bid
Loans based on a LIBOR Auction, the margin above or below the
applicable LIBO Rate offered for each such Competitive Bid Loan,
expressed as a percentage (rounded to the nearest 1/10,000th of
1%) to be added to such rate.
"LIBO Rate Loan" means a Revolving Loan bearing interest, at
all times during an Interest Period applicable to such Revolving
Loan, at a fixed rate of interest determined by reference to the
LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"LIBOR Auction" means a solicitation of Competitive Bid Loan
quotes pursuant to Section 2.4 hereof based on the LIBO Rate.
"LIBOR Office" means, relative to any Lender, the office of
such Lender designated as such below its signature hereto or
designated in the Lender Assignment Agreement or such other
office of a Lender as designated from time to time by notice from
such Lender to the Borrower and the Administrative Agent, whether
or not outside the United States, which shall be making or
maintaining LIBO Rate Loans or Competitive Bid Loans based on a
LIBOR Auction.
"LIBOR Reserve Percentage" is defined in Section 3.2.1.
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property
to secure payment of a debt or performance of an obligation or
other priority or preferential arrangement of any kind or nature
whatsoever.
"Loan Commitment Amount" means, on any day, $53,750,000, as
such amount may be reduced from time to time pursuant to
Section 2.2.
"Loan Commitment Termination Date" means the earliest of
(a) the Stated Maturity Date;
(b) the date on which the Loan Commitment Amount is
terminated in full or reduced to zero pursuant to Section
2.2; and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c),
the Revolving Loan Commitment and Swing Line Loan Commitment
shall terminate automatically and without further action.
"Loan Document" means this Agreement, the Notes, the Fee
Letter and each other agreement, document or instrument delivered
pursuant hereto or thereto, whether or not mentioned herein or
therein.
"Loans" means, as the context may require, either a Swing
Line Loan, a Competitive Bid Loan or a Revolving Loan.
"Long Term Credit Agreement" means the Revolving Credit
Agreement, dated as of the date hereof (as amended, supplemented,
amended and restated or otherwise modified from time to time),
among the Borrower, the various financial institutions as are or
may become parties thereto, Scotiabank, Chemical and BONY, as co-
agents and Scotiabank, as administrative agent.
"Market Value" for precious metals shall mean, as of the
date of any determination thereof, the value based on the average
of the prices of such asset, with respect to gold or silver, as
published by Handy & Harman (or if not so published by Handy &
Harman, the price as determined by the London P.M. Fix on such
date), and, with respect to platinum or palladium, as determined
by the London P.M. Fix, on each day during the three month period
ending on the date of such determination.
"Net Income" means, for any period, the consolidated net
income of the Borrower and its Subsidiaries for such period
(excluding any extraordinary gains and losses).
"Non-Consenting Lender" is defined in clause (d) of
Section 2.6.2.
"Non-Recourse Joint Venture" means a joint venture (i) to
which a Non-Recourse Subsidiary is a party and (ii) whose
Indebtedness is non-recourse to the Borrower or any of its
Subsidiaries which is not the Non-Recourse Subsidiary party
thereto or any of their respective assets.
"Non-Recourse Subsidiary" means a direct or indirect
Subsidiary of the Borrower (i) which was formed solely for the
purpose of entering into a Non-Recourse Joint Venture and (ii)
whose Indebtedness is non-recourse to the Borrower or any other
Subsidiary of the Borrower or any of their respective assets.
"Note" means, as the context may require, a Competitive Bid
Loan Note, a Swing Line Loan Note or a Revolving Loan Note.
"Obligations" means all obligations (monetary or otherwise)
of the Borrower arising under or in connection with this
Agreement, the Notes and each other Loan Document.
"Organic Document" means, relative to the Borrower, its
certificate of incorporation, its by-laws and all shareholder
agreements, voting trusts and similar arrangements applicable to
any of its authorized shares of capital stock.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is
defined in section 3(2) of ERISA, which is subject to Title IV of
ERISA (other than a multiemployer plan as defined in section
4001(a)(3) of ERISA), and to which the Borrower or any
corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within
the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage
set forth opposite its signature hereto or set forth in the
Lender Assignment Agreement, as such percentage may be adjusted
from time to time pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.1.
"Person" means any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Quarterly Payment Date" means the last day of each March,
June, September and December or, if any such day is not a
Business Day, the next succeeding Business Day.
"Receivable" shall mean any account (as that term is defined
in Section 9-106 of the Uniform Commercial Code as in effect,
from time to time, in the State of New York) and any instrument
(as that term is defined in Section 9-105 of the Uniform
Commercial Code as in effect from time to time, in the State of
New York).
"Reference Lenders" means Scotiabank, BONY and Chemical.
"Release" means a "release", as such term is defined in
CERCLA.
"Replacement Notice" is defined in Section 4.11.
"Required Lenders" means, at any time,
(a) with respect to any provision of this Agreement
other than the declaration of the acceleration of the
maturity of all or any portion of the outstanding principal
amount of the Credit Extensions and other Obligations to be
due and payable pursuant to Section 8.3, Lenders whose
Percentages equal or exceed 51%; or
(b) with respect to the declaration of the
acceleration of the maturity of all or any portion of the
outstanding principal amount of the Credit Extensions and
other Obligations to be due and payable pursuant to
Section 8.3, Lenders holding 51% or more of the aggregate
principal amount of the Credit Extensions then outstanding.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq., as
in effect from time to time.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Borrowing" means Revolving Loans of the same
type and, in the case of LIBO Rate Loans, having the same
Interest Period, made by all Lenders on the same Business Day
pursuant to the same Revolving Loan Borrowing Request in
accordance with Section 2.1.
"Revolving Loan Borrowing Request" means a certificate
requesting Revolving Loans duly executed by an Authorized
Officer, substantially in the form of Exhibit B-1 attached
hereto.
"Revolving Loan Commitment" is defined in Section 2.1.1.
"Revolving Loan Note" means any promissory note of the
Borrower in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to
such Lender resulting from Revolving Loans outstanding from such
Lender, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Scotiabank" is defined in the preamble.
"Stated Maturity Date" means September 26, 1995, as such
date may be extended pursuant to Section 2.6; provided, that in
no event shall the Stated Maturity Date be extended beyond the
Stated Maturity Date (as such term is defined in the Long Term
Credit Agreement) of the Indebtedness outstanding under the Long
Term Credit Agreement.
"Subject Lender" is defined in Section 4.11.
"Subsidiary" means, with respect to any Person, any
corporation of which more than 50% of the outstanding capital
stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned
by such Person, by such Person and one or more other Subsidiaries
of such Person, or by one or more other Subsidiaries of such
Person.
"Swing Line Lender" means Scotiabank in its individual
capacity hereunder (and not in its capacity as a Co-Agent or the
Administrative Agent). At the request of Scotiabank another
Lender consented to by the Borrower (such consent not to be
unreasonably withheld) may become a successor Swing Line Lender.
"Swing Line Loan Borrowing" means Swing Line Loans (which
shall be made as Base Rate Loans) made by the Swing Line Lender
on the same Business Day pursuant to a Revolving Loan Borrowing
Request in accordance with Section 2.1.
"Swing Line Loan Commitment" is defined in Section 2.1.2.
"Swing Line Loan Commitment Amount" means, on any day,
$10,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
"Swing Line Loan Note" means any promissory note of the
Borrower in the form of Exhibit A-3 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to
the Swing Line Lender resulting from Swing Line Loans outstanding
from the Swing Line Lender, and also means all other promissory
notes accepted from time to time in substitution therefor or
renewal thereof.
"Swing Line Loans" is defined in Section 2.1.2.
"Taxes" is defined in Section 4.6.
"type" means, relative to any Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a LIBO Rate Loan.
"United States" or "U.S." means the United States of
America, its fifty States and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is
defined in section 3(1) of ERISA.
SECTION 1.2. Use of Defined Terms. Unless otherwise
defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings
when used in the Disclosure Schedule and in any Loan Document,
Borrowing Request, Continuation/Conversion Notice, notice and
other communication delivered from time to time in connection
with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified,
references in this Agreement and in each other Loan Document to
any Article or Section are references to such Article or Section
of this Agreement or such other Loan Document, as the case may
be, and, unless otherwise specified, references in any Article,
Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations; No
Duplication; Consolidation. Unless otherwise specified, (i) all
accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 7.2.4) shall be
made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared in accordance with,
generally accepted accounting principles in the U.S. ("GAAP"),
and (ii) all accounting determinations and computations hereunder
or under any other Loan Documents (including under Section 7.2.4)
shall be made without duplication and on a consolidated basis for
the Borrower and its Subsidiaries.
ARTICLE II
COMMITMENTS, BORROWING AND BIDDING
PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the
conditions of this Agreement (including Article V),
(a) each Lender severally agrees to make Revolving
Loans pursuant to the Revolving Loan Commitment described in
Section 2.1.1; and
(b) the Swing Line Lender agrees to make Swing Line
Loans pursuant to the Swing Line Loan Commitment described
in Section 2.1.2.
SECTION 2.1.1. Revolving Loan Commitment. From time to
time on any Business Day occurring prior to the Loan Commitment
Termination Date, each Lender will make loans (relative to such
Lender, and of any type, its "Revolving Loans") to the Borrower
equal to such Lender's Percentage of the aggregate amount of the
Revolving Loan Borrowing requested by the Borrower to be made on
such day. The commitment of each Lender described in this
Section 2.1.1 is herein referred to as its "Revolving Loan
Commitment". On the terms and subject to the conditions hereof,
the Borrower may from time to time prior to the Loan Commitment
Termination Date borrow, prepay and reborrow Revolving Loans.
SECTION 2.1.2. Swing Line Loan Commitment. From time to
time on any Business Day occurring prior to the Loan Commitment
Termination Date, the Swing Line Lender will make loans (referred
to herein as "Swing Line Loans") to the Borrower as Base Rate
Loans equal to the aggregate amount of Swing Line Loans being
requested by the Borrower to be made on such day. The commitment
of the Swing Line Lender described in this Section 2.1.2 is
herein referred to as its "Swing Line Loan Commitment." On the
terms and subject to the conditions hereof, the Borrower may from
time to time prior to the Loan Commitment Termination Date,
borrow, prepay and reborrow Swing Line Loans.
SECTION 2.1.3. Lenders Not Permitted or Required to Make
Revolving Loans or Swing Line Loans. No Lender shall be
permitted or required to make any Revolving Loan or Swing Line
Loan if, after giving effect thereto and to any repayment of
Credit Extensions to be made with the proceeds thereof, the
aggregate unpaid principal amount of
(a) all Loans outstanding to all Lenders would exceed
the Loan Commitment Amount; or
(b) all Swing Line Loans outstanding to the Swing Line
Lender would exceed the Swing Line Loan Commitment Amount.
SECTION 2.2. Reduction of Commitments. The Borrower may,
from time to time on any Business Day occurring after the time of
the initial Borrowing hereunder, voluntarily reduce the Loan
Commitment Amount or the Swing Line Loan Commitment Amount;
provided, however, that (i) all such reductions shall require at
least three Business Days' prior written irrevocable notice to
the Administrative Agent and be permanent, and (ii) any partial
reduction of (A) the Loan Commitment Amount shall be in a minimum
amount of $5,000,000 and in an integral multiple of $500,000, and
(B) the Swing Line Loan Commitment Amount shall be in a minimum
amount of $1,000,000 and in an integral multiple of $250,000; and
provided, further, that the Borrower may terminate the
Commitments in whole if, at the time of and as a condition of
such termination, the Borrower shall have repaid in full the
aggregate outstanding principal amount of all Revolving Loans and
Swing Line Loans, together with all accrued interest and fees
thereon to the date of termination.
SECTION 2.3. Revolving Loan and Swing Line Loan Borrowing
Procedure and Funding Maintenance. (a) Revolving Loans. By
delivering a Revolving Loan Borrowing Request to the
Administrative Agent at or before 10:00 a.m. (New York City
time), on a Business Day, the Borrower may from time to time
irrevocably request, (x) on not less than three nor more than
five Business Days' notice, in the case of LIBO Rate Loans, and
(y) on not more than five Business Days' notice (but before
10:30 a.m. (New York City time) on the date such Borrowing is to
occur), in the case of Base Rate Loans, that a Revolving Loan
Borrowing be made by all the Lenders in a minimum amount of
$5,000,000 and an integral multiple of $500,000, or, if less, in
the unused amount of the Revolving Loan Commitment. The
Administrative Agent shall promptly notify each Lender of the
receipt of a Revolving Loan Borrowing Request. On the terms and
subject to the conditions of this Agreement, each Revolving Loan
Borrowing shall be comprised of the type of Revolving Loans, and
shall be made on the Business Day, specified in such Revolving
Loan Borrowing Request. On or before 11:00 a.m. (New York City
time) (in the case of LIBO Rate Loans), and 12:00 (noon) (New
York City time), in the case of a Base Rate Loan, on the Business
Day that such Revolving Loan Borrowing is to be made, each Lender
shall deposit with the Administrative Agent immediately available
funds in an amount equal to such Lender's Percentage of the
requested Revolving Loan Borrowing. Such deposit will be made to
an account which the Administrative Agent shall specify from time
to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make
such funds available to the Borrower by wire transfer to the
accounts the Borrower shall have specified in its Revolving Loan
Borrowing Request. No Lender's obligation to make any Revolving
Loan shall be affected by any other Lender's failure to make any
Revolving Loan.
(b) Swing Line Loans. By written or telephonic notice to
the Swing Line Lender on or before 11:00 a.m. (New York City
time), on a Business Day the Borrower may from time to time
request that Swing Line Loans be made by the Swing Line Lender on
such Business Day (or the next succeeding Business Day) in an
aggregate minimum principal amount of $1,000,000 and an integral
multiple of $250,000. All telephonic notices shall be confirmed
on the same Business Day by the delivery to the Administrative
Agent of an appropriately completed Revolving Loan Borrowing
Request. All Swing Line Loans shall be made as Base Rate Loans.
The proceeds of each Swing Line Loans shall be made available by
the Swing Line Lender to the Borrower by wire transfer of such
proceeds to such transferees, or to such accounts of the
Borrower, as the Borrower shall have specified in its notice
therefor.
(c) If the outstanding principal amount of any Swing Line
Loan is not repaid when due pursuant to the terms of this
Agreement, each Lender (other than the Swing Line Lender)
irrevocably agrees that it will, upon receipt of a notice from
the Swing Line Lender, promptly (and in any event within one
Business Day) transfer to the Swing Line Lender, in immediately
available funds, an amount equal to such Lender's Percentage of
the then aggregate outstanding amount of all Swing Line Loans,
and thereafter such Loans shall constitute a Revolving Loan made
by such Lender thereunder.
SECTION 2.3.1. Continuation and Conversion Elections. By
delivering a Continuation/Conversion Notice to the Administrative
Agent on or before 10:00 a.m. (New York City time), on a Business
Day, the Borrower may from time to time irrevocably elect, on not
less than three nor more than five Business Days' notice that
all, or any portion in an aggregate minimum amount of $5,000,000
and an integral multiple of $500,000, of any Revolving Loans be,
in the case of Base Rate Loans, converted into LIBO Rate Loans
or, in the case of LIBO Rate Loans, on the last day of an
Interest Period with respect thereto be converted into a Base
Rate Loan or continued as a LIBO Rate Loan (in the absence of
delivery of a Continuation/Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day
of the then current Interest Period with respect thereto, such
LIBO Rate Loan shall, on such last day, automatically convert to
a Base Rate Loan); provided, however, that (i), except as
provided in Section 4.1, each such conversion or continuation
shall be pro rated among the applicable outstanding Revolving
Loans of all Lenders, and (ii) no portion of the outstanding
principal amount of any Revolving Loan may be continued as, or be
converted into, a LIBO Rate Loan when any Default has occurred
and is continuing.
SECTION 2.3.2. Funding. Each Lender may, if it so elects,
fulfill its obligation to make, continue or convert LIBO Rate
Loans hereunder, or to make a Competitive Bid Loan based on a
LIBOR Auction, by causing one of its foreign branches or
Affiliates (or an international banking facility created by such
Lender) to make or maintain such LIBO Rate Loan or Competitive
Bid Loan, as the case may be; provided, however, that such LIBO
Rate Loan or Competitive Bid Loan, as the case may be, shall
nonetheless be deemed to have been made and to be held by such
Lender, and the obligation of the Borrower to repay such LIBO
Rate Loan or Competitive Bid Loan, as the case may be, shall
nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility. In
addition, the Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of
Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed
that each Lender elected to fund all LIBO Rate Loans and
Competitive Bid Loans based on a LIBOR Auction by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar
market.
SECTION 2.4. Competitive Bid Loans. Subject to the terms
and conditions of this Agreement (including Article V), each
Lender severally agrees that the Borrower may request that
Competitive Bid Loan Borrowings under this Section 2.4 be made
from time to time on any Business Day prior to the date occurring
15 Business Days prior to the Loan Commitment Termination Date in
the manner set forth below; provided, however, that following the
making of each Competitive Bid Loan Borrowing, the aggregate
amount of all Loans then outstanding shall not exceed the Loan
Commitment Amount and the Borrower hereby agrees to make a
mandatory prepayment of Loans on the date of each Competitive Bid
Loan Borrowing with the proceeds of Competitive Bid Loans to the
extent necessary (i) to reduce the outstanding principal amount
of all Loans (after giving effect to such Competitive Bid Loan
Borrowing) to an amount not in excess of the Loan Commitment
Amount, and (ii) to prepay the aggregate outstanding principal
amount of all Swing Line Loans.
(a) Competitive Bid Loan Borrowing Request. The
Borrower may request Competitive Bid Loan Borrowings under
this Section 2.4 by delivering to the Administrative Agent,
not later than 10:00 a.m. (New York City time) at least (x)
five Business Days prior to the date of the proposed
Competitive Bid Loan Borrowing (in the case of LIBOR
Auctions) or (y) one Business Day prior to the date of the
proposed Competitive Bid Loan Borrowing (in the case of an
Absolute Rate Auction), a revocable Competitive Bid Loan
Borrowing Request (which shall constitute an invitation to
the Lenders to extend Competitive Bid Loan quotes to the
Borrower, and which may contain requests for up to three
different Competitive Bid Loan Borrowings), specifying
(i) the proposed date (which shall be a Business
Day) and aggregate principal amount or amounts of each
Competitive Bid Loan to be made as part of such
proposed Competitive Bid Loan Borrowing (each of which
such Competitive Bid Loan shall be in a minimum
principal amount of $5,000,000 and in an integral
multiple of $500,000) (and, subject to the proviso
contained in the first sentence of this Section, which
principal amount may exceed the Loan Commitment Amount
then available to be borrowed),
(ii) whether the Competitive Bid Loan quotes
requested are to set forth a LIBO Rate Bid Margin or an
Absolute Rate (or a combination thereof),
(iii) the proposed maturity date or dates (each a
"Competitive Bid Loan Maturity Date") for repayment of
each Competitive Bid Loan to be made as part of such
Competitive Bid Loan Borrowing (which maturity date or
dates may not be later than the earlier of the date
occurring (A) six months after the date of such
Competitive Bid Loan Borrowing or (B) the Loan
Commitment Termination Date), and
(iv) in the case of Competitive Bid Loans based
on the LIBOR Auction, the proposed duration of the
Interest Period applicable thereto.
(b) Invitation for Bid Loan Quotes. Promptly upon
receipt of a Competitive Bid Loan Borrowing Request but in
no event later than 2:30 p.m. (New York City time) on the
date of such receipt, the Administrative Agent shall send to
the Lenders by facsimile an Invitation for Bid Loan Quotes
substantially in the form of Exhibit C-1 attached hereto
containing the information contained in the applicable
Competitive Bid Loan Request and which shall constitute an
invitation by the Borrower to each Lender to submit
Competitive Bid Loan quotes in response thereto.
(c) Submission and Contents of Bid Loan Quotes.
(i) If any Lender, in its sole discretion, elects
to offer to make a Competitive Bid Loan to the Borrower
as part of such proposed Competitive Bid Loan Borrowing
at a rate of interest specified by such Lender in its
sole discretion, it shall deliver to the Administrative
Agent not later than (x) 11:00 a.m. (New York City
time) on the fourth Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or
(y) 9:30 a.m. (New York City time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction,
a Competitive Bid Loan Offer, which must comply with
the requirements of this clause, in the form of Exhibit
C-2 hereto; provided, that Competitive Bid Loan quotes
submitted by the Administrative Agent (or any affiliate
of the Administrative Agent) in the capacity of a
Lender may be submitted, and may only be submitted, if
the Administrative Agent or such affiliate notifies the
Borrower of the terms of the offer or offers contained
therein not later than (x) 10:45 a.m. (New York City
time) on the fourth Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or
(y) 9:15 a.m. (New York City time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction.
Subject to Articles V and VIII, such Competitive Bid
Loan Offer shall be irrevocable except with the written
consent of the Administrative Agent, given on the
instructions of the Borrower, and shall specify
(A) the proposed date of Borrowing, which
shall be the same as that set forth in the
applicable Invitation for Bid Loan Quotes,
(B) the principal amount of the Competitive
Bid Loan which such Lender would be willing to
make as part of such proposed Competitive Bid Loan
Borrowing, which principal amount may be greater
than, less than or equal to such Lender's
Percentage of the Loan Commitment Amount, but
which amount shall be in a minimum principal
amount of $5,000,000 and in an integral multiple
of $1,000,000,
(C) in the case of a LIBOR Auction, the LIBO
Rate Bid Margin, and in the case of an Absolute
Rate Auction, the Absolute Rate therefor, and
(D) the identity of the quoting Lender.
(ii) Any Competitive Bid Loan Offer that:
(A) is not substantially in the form of
Exhibit C-2 hereto or does not specify all of the
information required in clause (c) of this
Section;
(B) contains qualifying, conditional or
similar language;
(C) contains proposed terms other than or
in addition to those set forth in the applicable
Invitation for Bid Loan Quotes; or
(D) arrives after the time set forth in
clause (c) of this Section
shall be disregarded by the Administrative Agent.
(d) Notice to Borrower. The Administrative Agent
shall (by telephone confirmed by telecopy), by 1:00 p.m.
(New York City time) (on the fourth Business Day prior to
the proposed date of Borrowing, in the case of a LIBOR
Auction) and 10:00 a.m. (New York City time) (on the
proposed date of Borrowing, in the case of an Absolute Rate
Auction) notify the Borrower of the terms of any
Competitive Bid Loan Offer submitted by a Lender that is in
accordance with clause (c) of this Section. Any subsequent
Competitive Bid Loan Offer of a Lender shall be disregarded
by the Administrative Agent unless such subsequent
Competitive Bid Loan Offer is submitted solely to correct a
manifest error in such earlier Competitive Bid Loan Offer.
The Administrative Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Competitive
Bid Loans for which offers have been received in respect of
the related Invitation for Bid Loan Quotes, (B) the
respective principal amounts and Competitive Bid Rates so
offered, and (C) the identity of such quoting Lenders.
(e) Competitive Bid Loan Acceptance. The Borrower
shall, in turn, before (x) 4:00 p.m. (New York City time)
on the fourth Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction, or (y) 12:00
(noon) (New York City time) on the date of such proposed
Competitive Bid Loan Borrowing, in the case of an Absolute
Rate Auction, either
(i) irrevocably cancel the Competitive Bid Loan
Borrowing Request that requested such Competitive Bid
Loan Borrowing by giving the Administrative Agent
(which shall promptly notify each Lender) telephonic
notice (promptly confirmed in writing) to that effect
(and, for purposes of this Section, a failure on the
part of the Borrower to timely notify the
Administrative Agent under the terms of this clause
shall be deemed to be non-acceptance of all offers so
notified to it pursuant to clause (d) above), or
(ii) irrevocably accept one or more of the
offers made by any Lender or Lenders pursuant to
clause (d) above, in its sole discretion, by giving
the Administrative Agent telephonic notice (and the
Administrative Agent shall, promptly upon receiving
such telephonic notice from the Borrower, notify each
Lender whose Competitive Bid Loan Offer has been
accepted) (promptly confirmed in writing by delivery
to the Administrative Agent of a Competitive Bid Loan
Borrowing Notice, copies of which shall thereafter be
forwarded to each of the Lenders) of
(A) the amount of the Competitive Bid Loan
Borrowing to be made on such date,
and
(B) the amount of the Competitive Bid Loan
(which amount shall not be greater than, but
which may be less than, the amount offered by
such Lender for such Competitive Bid Loan
pursuant to clause (d) above) to be made by such
Lender as part of such Competitive Bid Loan
Borrowing, and reject any remaining offers made
by Lenders pursuant to clause (d) above by giving
the Administrative Agent (which shall promptly
give to the Lenders) notice to that effect;
provided, however, that
(C) the aggregate amount of the Competitive
Bid Loan Offers accepted by the Borrower shall
not exceed the principal amount specified in the
applicable Competitive Bid Loan Borrowing
Request,
(D) no Lender shall, without its prior
written consent (in its sole discretion), be
required to make a Competitive Bid Loan in a
principal amount of less than $5,000,000 and
integrals of $1,000,000;
(E) no bid shall be accepted for a
Competitive Bid Loan unless such Competitive Bid
Loan is in a minimum principal amount of
$5,000,000 (except as provided in clause (D)
above) and an integral multiple of $1,000,000 and
is part of a Competitive Bid Loan Borrowing in a
minimum principal amount of $5,000,000, and
(F) the Borrower may not accept any offer
that is described in clause (c)(ii) of this
Section, or that otherwise fails to comply with
the requirements of this Agreement.
(f) Funding of Competitive Bid Loans. Not later than
11:00 a.m. (New York City time) (in the case of a Borrowing
based on a LIBOR Auction) and 1:00 p.m. (New York City
time) (in the case of a Borrowing based on an Absolute Rate
Auction), in each case on the date specified for each
Competitive Bid Loan hereunder, each Lender participating
therein shall make available the amount of the Competitive
Bid Loan to be made by it on such date to the
Administrative Agent in immediately available funds, for
the account of the Borrower, such deposit to be made to an
account maintained by the Administrative Agent, as the
Administrative Agent shall specify from time to time by
notice to the Lenders or as otherwise agreed to in writing
by the Administrative Agent and the Borrower. The amount
so received by the Administrative Agent shall promptly be
made available to the Borrower by depositing the same in
immediately available funds in an account of the Borrower's
notified to the Administrative Agent in writing.
SECTION 2.5. Notes. Each Lender's Loans under its
Commitments shall be evidenced by a Note payable to the order of
such Lender in a maximum principal amount equal to
(a) in the case of Revolving Loans, such Lender's
Percentage of the original Loan Commitment Amount;
(b) in the case of Competitive Bid Loans,
$50,000,000; and
(c) in the case of Swing Line Loans, $10,000,000.
The Borrower hereby irrevocably authorizes each Lender to make
(or cause to be made) appropriate notations on the grid attached
to such Lender's Note (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date
of, the outstanding principal amount of, and the interest rate
and Interest Period (in the case of Revolving Loan Notes) and the
Competitive Bid Loan Maturity Dates and Interest Period (if
applicable) (in the case of Competitive Bid Loan Notes)
applicable to the Loans evidenced thereby. Such notations shall
be prima facie evidence of the matters stated therein, absent
manifest error; provided, however, that the failure of any Lender
to make any such notations shall not limit or otherwise affect
any Obligations of the Borrower.
SECTION 2.6. Extension of Stated Maturity Date and
Maturity of Loans. Each of (i) the Stated Maturity Date and (ii)
the obligation, pursuant to Section 3.1.1, to make a mandatory
repayment of the outstanding principal amount of Loans on the
Stated Maturity Date, shall be subject to extension or
postponement, as the case may be, as set forth in this Section.
SECTION 2.6.1. Request for Extension of Stated Maturity
Date and Maturity of Loans. Any term or provision of this
Agreement to the contrary notwithstanding, no earlier than
60 days nor later than 45 days prior to the then Stated Maturity
Date (if the Revolving Loan Commitment then remains in effect),
the Borrower may, by delivery of a duly completed Extension
Request to the Administrative Agent, irrevocably request that
each Lender and the Swing Line Lender extend for an additional
364 day period (such period to commence on the day immediately
following the then Stated Maturity Date) the Stated Maturity Date
relating to such Lender's Revolving Loan Commitment (which shall
also be deemed to be a request that the Swing Line Lender extend
for such period the Swing Line Loan Commitment); provided, that
the Stated Maturity Date shall not be extended beyond the Stated
Maturity Date (as such term is defined in the Long Term Credit
Agreement). The failure of the Borrower to request such an
extension hereunder shall automatically terminate the Borrower's
rights to request additional such extensions.
SECTION 2.6.2. Consent to Extension of Stated Maturity
Date and Maturity of Loans. (a) The Administrative Agent shall,
promptly after receipt of any such Extension Request pursuant to
Section 2.6.1, notify each Lender thereof by providing them a
copy of such Extension Request.
(b) Each Lender shall, within 30 days of receipt of the
notice described in clause (a), notify the Administrative Agent
whether or not it consents to the request of the Borrower set
forth in such Extension Request, such consent to be in the sole
discretion of such Lender. If any Lender does not so notify the
Administrative Agent of its decision within such 30 day period,
such Lender, shall be deemed not to have consented to such
requests of the Borrower.
(c) The Administrative Agent shall promptly notify the
Borrower whether the Lenders have consented to such request. If
the Administrative Agent does not so notify the Borrower within 5
days prior to the then existing Stated Maturity Date, the
Administrative Agent shall be deemed to have notified the
Borrower that the Lenders have not consented to the Borrower's
request.
(d) Each Lender that elects not to provide a new Revolving
Loan Commitment upon the expiration of the then effective Stated
Maturity Date or that fails to so notify the Administrative Agent
of such consent (a "Non-Consenting Lender") hereby agrees that
if, on or prior to the then effective Stated Maturity Date, any
other Lender or other financial institution acceptable to the
Borrower and the Administrative Agent offers to purchase such
Non-Consenting Lender's Percentage of the Revolving Loan
Commitment for a purchase price equal to the sum of all amounts
then owing with respect to the Revolving Loans and all other
amounts accrued for the account of such Non-Consenting Lender,
such Non-Consenting Lender will assign, sell and transfer on the
then effective Stated Maturity Date all of its right, title,
interest and obligations with respect to the foregoing to such
other Lender or financial institution pursuant to the terms of
Section 10.11.1 and the fee payable pursuant to Section 10.11.1
shall be payable by such Assignee Lender.
(e) On the date that would have been the Stated Maturity
Date had the Revolving Loan Commitment not been extended pursuant
to the terms of this Section, the Revolving Loans of any Non-
Consenting Lender that were not purchased pursuant to clause (d)
will mature and be due and payable on the then scheduled Stated
Maturity Date, and the Commitments of such Non-Consenting Lender
will thereupon terminate. On such Stated Maturity Date, the Loan
Commitment Amount will be automatically reduced by an amount
equal to the product of
(i) the sum of the Percentages of all Non-Consenting
Lenders that were not purchased pursuant to clause (d), and
(ii) the Loan Commitment Amount (whether used or
unused) on such Stated Maturity Date immediately prior to
such calculation.
(f) The Percentages of the remaining Lenders which have
consented to an extension of their Commitment hereunder shall be
adjusted accordingly by the Administrative Agent, based on such
Lenders' pro rata share of the remaining Loan Commitment Amount.
Notwithstanding anything to the contrary contained in this
Section, the Stated Maturity Date of those Lenders consenting to
such an extension shall not be extended for an additional 364 day
period unless Lenders whose Percentages equal or exceed 75%
(after giving effect to the operation of clause (d)), agree to
such an extension.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. Repayments and
prepayments of Loans shall be made as set forth in this Section
3.1. Each repayment or prepayment of any Loan made pursuant to
this Section 3.1 shall be without premium or penalty, except as
may be required by Section 4.4. No voluntary prepayment of
principal of any Revolving Loans or Swing Line Loans shall cause
a reduction in the Loan Commitment Amount or the Swing Line Loan
Commitment Amount, as the case may be.
SECTION 3.1.1. Final Maturity. The Borrower shall repay
in full the entire unpaid principal amount of each Revolving Loan
and Swing Line Loan upon the Stated Maturity Date therefor and
each Competitive Bid Loan upon the Competitive Bid Loan Maturity
Date therefor.
SECTION 3.1.2. Voluntary Prepayments. From time to time
on any Business Day prior to the Stated Maturity Date, the
Borrower may make a voluntary prepayment, in whole or in part, of
the outstanding principal amount of any Revolving Loans or Swing
Line Loans; provided, however, that
(a) any such prepayment of Revolving Loans shall be
made pro rata among Revolving Loans of the same type and,
if applicable, having the same Interest Period of all
Lenders;
(b) no such prepayment of any LIBO Rate Loan or a
Competitive Bid Loan may be made on any day other than the
last day of the Interest Period for such Loan, unless the
Borrower shall have given the Administrative Agent at least
two (but no more than five) Business Days' notice, and has
paid any costs required pursuant to Section 4.4;
(c) all such voluntary prepayments shall require at
least one but no more than five Business Days' prior
written notice to the Administrative Agent, which shall
promptly notify the Lenders; and
(d) all such voluntary partial prepayments shall be
in an aggregate minimum amount of $5,000,000 and an
integral multiple of $500,000, and in the case of Swing
Line Loans, be in an aggregated minimum amount of
$1,000,000 and an integral multiple of $250,000.
SECTION 3.1.3. Mandatory Prepayments. On each date when
(a) the aggregate outstanding principal amount of all outstanding
Loans (after giving effect to the use of proceeds of any
Borrowing made on such date) exceeds the Loan Commitment Amount,
as it may have been reduced pursuant to Section 2.2 or 2.6.2, the
Borrower shall make a mandatory prepayment of all Loans equal to
the excess, if any, of the amount of such sum over the Loan
Commitment Amount and (b) a Lender or Lenders make a Competitive
Bid Loan or a Revolving Loan, the Borrower shall prepay the
aggregate principal amount of all Swing Line Loans then
outstanding; provided, that, in any event, the Borrower shall
prepay the aggregate outstanding principal amount of each Swing
Line Loan within five Business Days following the making of such
Swing Line Loan.
SECTION 3.1.4. Acceleration of Stated Maturity Date.
Immediately upon any acceleration of the Stated Maturity Date of
any Loans pursuant to Section 8.2 or Section 8.3, the Borrower
shall repay all Loans to the full extent of such acceleration.
SECTION 3.2. Interest Provisions. Interest on the
outstanding principal amount of Loans shall accrue and be payable
in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice,
the Borrower may elect that Loans comprising a Borrowing accrue
interest at any of the following rates per annum:
(i) On that portion of such Borrowing maintained as
Base Rate Loans, such rate shall be equal to the Alternate
Base Rate from time to time in effect;
(ii) On that portion of such Borrowing maintained as
LIBO Rate Loans, during each Interest Period applicable
thereto, such rate shall be equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus a
margin of 1%; and
(iii) On that portion of such Borrowing maintained as
Competitive Bid Loans, equal to the applicable Competitive
Bid Rate specified by the Lender making such Competitive
Bid Loan in its Competitive Bid Loan Offer with respect
thereto delivered by such Lender and accepted by the
Borrower pursuant to Section 2.4.
The "LIBO Rate (Reserve Adjusted)" means, relative to any
Loan to be made, continued or maintained as, or converted into, a
LIBO Rate Loan for any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) determined
pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period
for LIBO Rate Loans will be determined by the Administrative
Agent on the basis of the LIBOR Reserve Percentage in effect on,
and the applicable rates furnished to and received by the
Administrative Agent from the Reference Lenders two Business Days
before the first day of such Interest Period, subject, however,
to the last sentence contained in the definition of "LIBO Rate".
"LIBO Rate" means, relative to any Interest Period, the
rate of interest equal to the average (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates per annum at
which Dollar deposits in immediately available funds are offered
to each Reference Lender's LIBOR Office in the London interbank
market as at or about 11:00 a.m. (London time), two Business Days
prior to the beginning of such Interest Period for delivery on
the first day of such Interest Period, and in an amount
approximately equal to the amount of each such Reference Lender's
LIBO Rate Loan in the case of Revolving Loans, and, in the case
of Competitive Bid Loans based on a LIBOR Auction, determined as
if each Reference Lender were participating in such Competitive
Bid Loan in an amount equal to such Reference Lender's Percentage
of the principal amount of the Competitive Bid Loan being
requested, and for a period approximately equal to such Interest
Period. In furtherance of the foregoing, each Reference Lender
agrees to furnish to the Administrative Agent timely information
for the purpose of determining each LIBO Rate. If any one or
more of the Reference Lenders shall fail timely to furnish such
information to the Administrative Agent for any such interest
rate, the Administrative Agent shall determine such interest rate
on the basis of the information furnished by the remaining
Reference Lenders.
"LIBOR Reserve Percentage" means, relative to any Interest
Period for LIBO Rate Loans, the reserve percentage (expressed as
a decimal) equal to the average maximum reserve requirements of
the Lenders (without giving effect to the branch or agency in
which such Lender funds such Loans) (including all basic,
emergency, supplemental, marginal and other reserves and taking
into account any transitional adjustments or other scheduled
changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable
to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D
of the F.R.S. Board, having a term approximately equal or
comparable to such Interest Period.
All LIBO Rate Loans and Competitive Bid Loans based on a
LIBOR Auction shall bear interest from and including the first
day of the applicable Interest Period to (but not including) the
last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan or Competitive Bid Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any
principal amount of any Loan is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after
any other monetary Obligation of the Borrower shall have become
due and payable, the Borrower shall pay interest (after as well
as before judgment) on such amounts at a rate per annum equal to
the Alternate Base Rate plus a margin of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each
Loan shall be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) other than in the case of Base Rate Borrowings,
on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan on the amount
prepaid;
(c) with respect to Base Rate Loans, on each
Quarterly Payment Date occurring after the initial
Borrowing hereunder;
(d) with respect to Competitive Bid Loans based on an
Absolute Rate, on each Competitive Bid Loan Maturity Date
and, with respect to Competitive Bid Loans based on an
Absolute Rate with a Competitive Bid Loan Maturity Date in
excess of three months, on each Quarterly Payment Date
occurring after the making of such Loan;
(e) with respect to LIBO Rate Loans and Competitive
Bid Loans based on a LIBOR Auction, the last day of each
applicable Interest Period (and, if such Interest Period
shall exceed three months, on each three month anniversary
of such Interest Period);
(f) with respect to any Base Rate Loans converted
into LIBO Rate Loans on a day when interest would not
otherwise have been payable pursuant to clause (c), on the
date of such conversion; and
(g) on that portion of any Loans the Stated Maturity
Date of which is accelerated pursuant to Section 8.2 or
Section 8.3, immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising
under this Agreement or any other Loan Document after the date
such amount is due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise) shall be payable upon
demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees
set forth in this Section 3.3. All such fees shall be non-
refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay
to the Administrative Agent for the pro rata account of each
Lender, an ongoing commitment fee at the rate of 1/4 of 1% per
annum of the sum of the average daily unused portion of the Loan
Commitment Amount (such unused Loan Commitment Amount to be
computed without giving effect to any outstanding principal
amount of Competitive Bid Loans or Swing Line Loans), such fee to
accrue for the period commencing on the Effective Date until the
Loan Commitment Termination Date (including any period thereof
when any availability under the Commitment is suspended by reason
of the Borrower's inability to satisfy any condition of
Article V). Such commitment fees shall be payable by the
Borrower in arrears on each Quarterly Payment Date, commencing
with the first such day following the Effective Date, and on the
Commitment Termination Date.
SECTION 3.3.2. Agents' Fee. The Borrower agrees to pay to
the Administrative Agent, for the Administrative Agent's own
account, those fees, in the amounts and on the dates, set forth
in the Fee Letter.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender
shall determine (which determination, upon notice thereof to the
Administrative Agent (which notice the Administrative Agent
agrees it will as promptly as practicable forward to the
Borrower), absent manifest error, shall be prima facie evidence
of the facts stated therein) that the introduction of or any
change in or in the interpretation of any law makes it unlawful,
or any central bank or other governmental authority asserts that
it is unlawful, for such Lender to make, continue or maintain any
Loan as, or to convert any Loan into, a LIBO Rate Loan, or to
make or maintain any Competitive Bid Loan based on a LIBOR
Auction, the obligations of such Lender to make, continue,
maintain or convert any such Loans shall, upon such
determination, forthwith be suspended until such Lender shall
notify the Administrative Agent that the circumstances causing
such suspension no longer exist (which notification such Lender
agrees to give as promptly as practicable when such circumstances
no longer exist), and all LIBO Rate Loans of such Lender shall
automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if
required by such law or assertion. If any Lender shall make such
determination with respect to the making or maintaining a
Competitive Bid Loan based on a LIBOR Auction and such
Competitive Bid Loan is required by law or assertion to be
prepaid on a date prior to the end of the Interest Period
therefor, then the Borrower shall prepay such Competitive Bid
Loan on such date.
SECTION 4.2. Deposits Unavailable. If the Administrative
Agent shall have determined that
(a) Dollar deposits in the relevant amount and for
the relevant Interest Period are not available to the
Reference Lenders in their relevant market; or
(b) by reason of circumstances affecting the
Reference Lenders or the relevant market, adequate means do
not exist for ascertaining the interest rate applicable
hereunder to LIBO Rate Loans or Competitive Bid Loans based
on a LIBOR Auction,
then, upon notice from the Administrative Agent to the Borrower
and the Lenders, the obligations of all Lenders under Section
2.3.1 and Section 2.3.2 to make or continue any Loans as, or to
convert any Loans into, LIBO Rate Loans or the right of the
Borrower to solicit any Competitive Bid Loans based on a LIBOR
Auction shall forthwith be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The
Borrower agrees to reimburse each Lender for any increase in the
cost to such Lender of, or any reduction in the amount of any sum
receivable by such Lender in respect of, making, continuing or
maintaining (or of its obligation to make, continue or maintain)
any Loans as, or of converting (or of its obligation to convert)
any Revolving Loans into, LIBO Rate Loans or Competitive Bid
Loans based on LIBOR Auctions. Such Lender shall promptly notify
the Administrative Agent in writing (which notice the
Administrative Agent agrees it will as promptly as practicable
forward to the Borrower) of the occurrence of any such event,
such notice to state, in reasonable detail, the reasons therefor
and the additional amount required fully to compensate such
Lender for such increased cost or reduced amount. Such
additional amounts shall be payable by the Borrower directly to
such Lender within five days of its receipt of such notice, and
such notice shall, in the absence of manifest error, be prima
facie evidence of the matters stated therein. If the Borrower is
requested to pay increased costs by any Lender (the "Affected
LIBO Lender") pursuant to this Section, the Borrower may, by
telephonic notice (promptly confirmed in writing) to the
Administrative Agent (which shall give prompt notice thereof to
the Affected LIBO Lender),
(a) as to any outstanding LIBO Rate Loans of such
Affected LIBO Lender, prepay such Loan in full, without
premium or penalty (other than as may be provided in
Section 4.4), but with such increased costs as well as any
accrued interest to the date of such prepayment on the
principal amount prepaid, without simultaneously making a
prepayment of the Loans of each other Lender and
simultaneously borrow a Base Rate Loan in an equal
principal amount (without the necessity that the conditions
set forth in Section 5.2 are met), and
(b) with respect to any Borrowing Request or
Continuation/Conversion Notice, request such Affected LIBO
Lender (i) to make the LIBO Rate Loan then or thereafter
subject to a Borrowing Request as a Base Rate Loan, or
(ii) to maintain the outstanding Base Rate Loan or LIBO
Rate Loan of such Lender then or thereafter the subject of
a Continuation/Conversion Notice as a Base Rate Loan.
SECTION 4.4. Funding Losses. In the event any Lender
shall incur any loss or expense (including any loss or expense
incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to make, continue or
maintain any portion of the principal amount of any Loan as a
LIBO Rate Loan or a Competitive Bid Loan based on a LIBOR
Auction, or to convert any portion of the principal amount of any
Revolving Loan into, a LIBO Rate Loan) as a result of
(a) any repayment or prepayment of the principal
amount of any LIBO Rate Loans or Competitive Bid Loans
based on LIBOR Auctions or any conversion of a LIBO Rate
Loan on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans (i) not being made as, or (ii) being
made as Loans other than as, LIBO Rate Loans or Competitive
Bid Loans based on LIBOR Auctions, in each case, in
accordance with the Revolving Loan Borrowing Request or
Competitive Bid Loan Acceptance therefor, as the case may
be; or
(c) any Revolving Loans not being continued as, or
converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor,
then, following the written notice of such Lender to the
Administrative Agent (which notice the Administrative Agent
agrees it will as promptly as practicable forward to the
Borrower), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender
for such loss or expense. Such written notice (which shall
include calculations in reasonable detail) shall, in the absence
of manifest error, be prima facie evidence of the matters stated
therein.
SECTION 4.5. Increased Capital Costs. If any change in,
or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having
the force of law) of any court, central bank, regulator or other
governmental authority affects or would affect the amount of
capital required or expected to be maintained by any Lender or
any Person controlling such Lender, and such Lender determines
(in its sole and absolute discretion) that the rate of return on
its or such controlling Person's capital as a consequence of its
Commitment or the Loans made by such Lender is reduced to a level
below that which such Lender or such controlling Person could
have achieved but for the occurrence of any such circumstance,
then, in any such case upon notice from time to time by such
Lender to the Administrative Agent (which notice the
Administrative Agent agrees it will as promptly as practicable
forward to the Borrower), the Borrower shall promptly, and in any
event within five days of its receipt of such notice, pay
directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to
any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest
error, be prima facie evidence of the matters stated therein. In
determining such amount, such Lender may use any method of
averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
SECTION 4.6. Taxes. All payments by the Borrower of
principal of, and interest on, the Loans and all other amounts
payable hereunder (including in respect of fees) shall be made
free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and other taxes, fees,
duties, withholdings or other charges of any nature whatsoever
imposed by any taxing authority, but excluding franchise taxes
and taxes imposed on or measured by any Lender's net income or
receipts imposed by the jurisdiction of incorporation or
organization of such Lender or the jurisdiction where such Lender
has its Domestic Office or LIBOR Office (such non-excluded items
being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder
is required in respect of any Taxes pursuant to any applicable
law, rule or regulation, then the Borrower will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such
authority; and
(c) pay to the Administrative Agent for the account
of the Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received
by each Lender will equal the full amount such Lender would
have received had no such withholding or deduction been
required.
Moreover, if the Administrative Agent or any Lender is obligated
to pay any Taxes with respect to any payment received by the
Administrative Agent or such Lender hereunder, the Administrative
Agent or such Lender may pay such Taxes and the Borrower will
promptly pay such additional amounts as is necessary in order
that the net amount received by such Person after the payment of
such Taxes (including any Taxes on such additional amount) shall
equal the amount such Person would have received had such Taxes
not been asserted.
If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent, for the account of the respective Lenders,
the required receipts or other required documentary evidence, the
Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a
result of any such failure. For purposes of this Section 4.6, a
distribution hereunder by the Administrative Agent or any Lender
to or for the account of any Lender shall be deemed a payment by
the Borrower.
Upon the request of the Borrower or the Administrative
Agent, each Lender that is organized under the laws of a
jurisdiction other than the United States or a State thereof
shall, prior to the due date of any payments under the Notes,
execute and deliver to the Borrower and the Administrative Agent,
on or about the first scheduled payment date in each Fiscal Year,
one or more (as the Borrower or the Administrative Agent may
reasonably request) United States Internal Revenue Service Forms
4224 or Forms 1001 or such other forms or documents (or successor
forms or documents), appropriately completed, as may be
applicable to establish the extent, if any, to which a payment to
such Lender is exempt from withholding or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless
otherwise expressly provided, all payments by the Borrower
pursuant to this Agreement, the Notes or any other Loan Document
shall be made by the Borrower to the Administrative Agent for the
pro rata account of the Lenders entitled to receive such payment.
All such payments required to be made to the Administrative Agent
shall be made, without setoff, deduction or counterclaim, not
later than 11:00 a.m. (New York City time), on the date due, in
immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to
the Borrower. Funds received after that time shall be deemed to
have been received by the Administrative Agent on the next
succeeding Business Day. The Administrative Agent shall promptly
remit in same day funds to each Lender its share, if any, of such
payments received by the Administrative Agent for the account of
such Lender. All interest and fees shall be computed on the
basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which
such interest or fee is payable over a year comprised of 360 days
(or, in the case of interest on a Base Rate Loan, 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such
payment shall (except as otherwise required by clause (a)(i) of
the definition of the term "Interest Period" with respect to LIBO
Rate Loans and clause (a)(ii) of the definition of "Interest
Period" with respect to Competitive Bid Loans based on the LIBOR
Auction) be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and
fees, if any, in connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall
obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of
any Loan (other than pursuant to the terms of Sections 4.3, 4.4,
4.5, 4.6 and 10.3) in excess of its pro rata share of payments
then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participations in Credit
Extensions made by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery
ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender which has sold a participation to the
purchasing Lender shall repay to the purchasing Lender the
purchase price to the ratable extent of such recovery together
with an amount equal to such selling Lender's ratable share
(according to the proportion of
(a) the amount of such selling Lender's required
repayment to the purchasing Lender
to
(b) 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 Borrower
agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights of payment (including
pursuant to Section 4.9) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower
in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section
applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this
Section to share in the benefits of any recovery on such secured
claim.
SECTION 4.9. Setoff. Each Lender shall, upon the
occurrence of any Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon
the occurrence of any other Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to
it (whether or not then due) any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Lender; provided, however, that any such
appropriation and application shall be subject to the provisions
of Section 4.8. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and
application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including
other rights of setoff under applicable law or otherwise) which
such Lender may have.
SECTION 4.10. Use of Proceeds. The Borrower shall apply
the proceeds of the Credit Extensions to refinance and repay in
full the Indebtedness described in Item 5.1.3 ("Indebtedness to
be Paid or Replaced") of the Disclosure Schedule and for the
general corporate purposes of the Borrower and its Subsidiaries;
without limiting the foregoing, no proceeds of any Loan will be
used in violation of F.R.S. Board Regulation U.
SECTION 4.11. Replacement of Lenders. Each Lender hereby
severally agrees that if such Lender (a "Subject Lender") makes a
demand upon the Borrower for (or if the Borrower is otherwise
required to pay) amounts pursuant to Section 4.3, Section 4.5 or
Section 4.6, the Borrower may, within 90 days of receipt by the
Borrower of such demand (or the occurrence of such other event
causing the Borrower to be required to pay such compensation)
give notice (a "Replacement Notice") in writing to the
Administrative Agent and such Lender of its intention to replace
such Lender with a financial institution designated in such
Replacement Notice. If the Administrative Agent shall, in the
exercise of its reasonable discretion and within 30 days of its
receipt of such Replacement Notice, notify the Borrower and such
Subject Lender in writing that the designated financial
institution is satisfactory to the Administrative Agent, then
such Lender shall, so long as no Default shall have occurred and
be continuing, assign, in accordance with Section 10.11.1, all of
its Commitments, Loans, Notes and other rights and obligations
under this Agreement and all other Loan Documents to such
designated financial institution; provided, however, that (i)
such assignment shall be without recourse, representation or
warranty and shall be on terms and conditions reasonably
satisfactory to such Lender and such designated financial
institution and (ii) the purchase price paid by such designated
financial institution shall be in the amount of such Lender's
Loans, together with all accrued and unpaid interest and fees in
respect thereof, plus all other amounts (including the amounts
demanded and unreimbursed under Section 4.3, 4.5 or 4.6, as the
case may be), owing to the Subject Lender hereunder. Upon the
effective date of such Assignment, the Borrower shall issue a
replacement Note or Notes, as the case may be, to such designated
financial institution and such institution shall become a
"Lender" for all purposes under this Agreement and the other Loan
Documents. The Administrative Agent agrees to use all
commercially reasonable efforts to assist the Borrower in
locating a replacement financial institution to replace any
Subject Lender; provided, however, that the Borrower agrees to
pay all reasonable costs and expenses (and the fee payable to the
Administrative Agent pursuant to Section 10.11.1) incurred by the
Administrative Agent in providing such assistance.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of
the Lenders to fund the initial Borrowing on and after the
Effective Date shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in
this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent
shall have received from the Borrower a certificate, dated the
date of the initial Credit Extension, of its Secretary or
Assistant Secretary as to
(a) resolutions of its Board of Directors then in
full force and effect authorizing the execution, delivery
and performance of this Agreement, the Notes and each other
Loan Document to be executed by it;
(b) true and complete copies of the Borrower's
Organic Documents; and
(c) the incumbency and signatures of those of its
officers authorized to act with respect to this Agreement,
the Notes and each other Loan Document executed by it,
upon which certificate each Lender may conclusively rely until it
shall have received a further certificate of the Secretary of the
Borrower canceling or amending such prior certificate.
SECTION 5.1.2. Delivery of Notes. The Administrative
Agent shall have received, for the account of each Lender, such
Lender's Revolving Notes and its Competitive Bid Loan Notes duly
executed and delivered by the Borrower. In addition, the
Administrative Agent shall have received the Swing Line Note duly
executed and delivered by the Borrower.
SECTION 5.1.3. Payment of Outstanding Indebtedness, etc.
All Indebtedness identified in Item 5.1.3 ("Indebtedness to be
Paid or Replaced") of the Disclosure Schedule, together with all
interest, all prepayment premiums and other amounts due and
payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial
Credit Extension) and all commitments thereunder shall have been
terminated, and evidence thereof shall have been delivered to the
Administrative Agent; and all Liens (if any) securing payment of
any such Indebtedness have been released and the Administrative
Agent shall have received all Uniform Commercial Code Form UCC-3
termination statements or other instruments as may be suitable or
appropriate in connection therewith.
SECTION 5.1.4. Opinions of Counsel. The Administrative
Agent shall have received opinions, dated the date of the initial
Credit Extension and addressed to the Administrative Agent, the
Co-Agents and all Lenders, from
(a) Paul E. Dixon, Vice President and General Counsel
of the Borrower, substantially in the form of Exhibit H
hereto (and the Borrower hereby expressly instructs such
counsel to deliver such opinion to the Administrative Agent
and the Lenders); and
(b) Mayer, Brown & Platt, counsel to the
Administrative Agent, substantially in the form of
Exhibit I hereto (and the Administrative Agent hereby
expressly instructs such counsel to deliver such opinion to
the Lenders).
SECTION 5.1.5. Closing Fees, Expenses, etc. The
Administrative Agent shall have received for its own account, or
for the account of each Lender, as the case may be, all fees,
costs and expenses due and payable pursuant to Sections 3.3 and
10.3, if then invoiced.
SECTION 5.1.6. Termination of Existing Agreement. The
Administrative Agent shall have received a termination letter in
form and substance satisfactory to it executed and delivered by
the Borrower to the effect that the Existing Agreement has been
terminated and that the Lenders (under and as defined in the
Existing Agreement) have no further obligations under the
Existing Agreement.
SECTION 5.2. All Credit Extensions. The obligation of
each Lender to fund any Loan on the occasion of any Borrowing
(including the initial Credit Extension) shall be subject to the
satisfaction of each of the conditions precedent set forth in
this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default,
etc. Both before and after giving effect to any Credit Extension
(but, if any Default of the nature referred to in Section 8.1.5
shall have occurred with respect to any other Indebtedness,
without giving effect to any application, directly or indirectly,
of the proceeds thereof to cure such Default) the following
statements shall be true and correct
(a) the representations and warranties set forth in
Article VI (excluding, however, those contained in Section
6.7 for any Credit Extension occurring after the initial
Borrowing hereunder) shall be true and correct in all
material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be
true and correct as of such earlier date);
(b) except as disclosed by the Borrower to the
Administrative Agent and the Lenders pursuant to
Section 6.7
(i) no litigation, arbitration or governmental
investigation or proceeding shall be pending or, to
the knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries which may
reasonably be expected to materially adversely affect
the Borrower's, or the Borrower and its Subsidiaries'
taken as a whole, businesses, operations, assets,
revenues, properties or prospects or which purports to
affect the legality, validity or enforceability of
this Agreement, the Notes or any other Loan Document;
and
(ii) no development shall have occurred in any
litigation, arbitration or governmental investigation
or proceeding disclosed pursuant to Section 6.7 which
may reasonably be expected to materially adversely
affect the businesses, operations, assets, revenues,
properties or prospects of the Borrower or the
Borrower and its Subsidiaries, taken as a whole;
(c) the aggregate outstanding principal amount of all
Loans does not exceed the Loan Commitment Amount; and
(d) no Default shall have then occurred and be
continuing, and neither the Borrower nor any of its
Subsidiaries are in material violation of any law or
governmental regulation or court order or decree the
violation of which would have a material adverse effect on
businesses, operations, assets, revenues, properties or
prospects of the Borrower or the Borrower and its
Subsidiaries, taken as a whole.
SECTION 5.2.2. Borrowing Request. The Administrative
Agent shall have received a Borrowing Request. The delivery of a
Borrowing Request and the acceptance by the Borrower of the
proceeds or the receipt of the benefit of such Credit Extension
shall constitute a representation and warranty by the Borrower
that on the date of such Credit Extension (both immediately
before and after giving effect to such Credit Extension and the
application of the proceeds thereof) the statements made in
Section 5.2.1 are true and correct.
SECTION 5.2.3. Satisfactory Legal Form. All documents
executed or submitted pursuant hereto by or on behalf of the
Borrower or any of its Subsidiaries in connection with such
Credit Extension shall be satisfactory in form and substance to
the Administrative Agent and its counsel; the Administrative
Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the
Administrative Agent or its counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Co-Agents and the
Administrative Agent to enter into this Agreement and to make
Credit Extensions hereunder, the Borrower represents and warrants
to each such party as set forth in this Article VI.
SECTION 6.1. Organization, etc. The Borrower and each of
its Subsidiaries is a corporation or partnership validly
organized and existing and in good standing under the laws of the
State of its incorporation or organization, is duly qualified to
do business and is in good standing as a foreign corporation or
partnership in each jurisdiction where the nature of its business
requires it to be so qualified except where such failure would
not, singly or in the aggregate, have a material adverse effect
on the Borrower's or the Borrower and its Subsidiaries', taken as
a whole, financial condition, operations, assets, businesses,
properties or prospects, and has full power and authority and
holds all requisite governmental licenses, permits and other
approvals to (i) enter into and perform its Obligations under
this Agreement, the Notes and each other Loan Document and
(ii) to own and hold under lease its property and to conduct its
business substantially as currently conducted by it, except for
the failure to hold such licenses, permits or other approvals
which such failure would not, singly or in the aggregate, have a
material adverse effect on the financial condition, operations,
assets, businesses, properties or prospects of the Borrower or
the Borrower and its Subsidiaries taken as a whole.
SECTION 6.2. Due Authorization, Non-Contravention, etc.
The execution, delivery and performance by the Borrower of this
Agreement, the Notes and each other Loan Document executed or to
be executed by it, are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and
do not
(a) contravene the Borrower's Organic Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on
or affecting the Borrower; or
(c) result in, or require the creation or imposition
of, any Lien on any of the Borrower's properties.
SECTION 6.3. Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or
performance by the Borrower of this Agreement, the Notes or any
other Loan Document. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes,
and the Notes and each other Loan Document executed by the
Borrower will, on the due execution and delivery thereof,
constitute, the legal, valid and binding obligations of the
Borrower enforceable in accordance with their respective terms,
except that the enforceability thereof may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and the effect
of general principles of equity.
SECTION 6.5. Financial Information. The balance sheets of
the Borrower and each of its Subsidiaries as at December 31,
1993, March 31, 1994 and June 30, 1994 and the related statements
of earnings and cash flow of the Borrower and each of its
Subsidiaries, copies of which have been furnished to the
Administrative Agent and each Lender, have been prepared in
accordance with GAAP consistently applied, and present fairly the
consolidated financial condition of the corporations covered
thereby as at the dates thereof and the results of their
operations for the periods then ended.
SECTION 6.6. No Material Adverse Change. Since the date
of the latest financial statements described in Section 6.5,
there has been no material adverse change in the financial
condition, operations, assets, business, properties or prospects
of the Borrower or its Subsidiaries.
SECTION 6.7. Litigation, etc. There is no pending or, to
the knowledge of the Borrower, threatened litigation, action or
proceeding affecting the Borrower or any of its Subsidiaries, or
any of their respective properties, businesses, assets or
revenues, which may reasonably be expected to materially
adversely affect the financial condition, operations, assets,
business, properties or prospects of the Borrower, or the
Borrower and its Subsidiaries, taken as a whole, or which
purports to affect the legality, validity or enforceability of
this Agreement, the Notes or any other Loan Document, except as
disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Borrower has no
Subsidiaries, except those Subsidiaries
(a) which are identified in Item 6.8 ("Existing
Subsidiaries") of the Disclosure Schedule; or
(b) which are permitted to have been acquired or
created in accordance with Section 7.2.5 or 7.2.10.
SECTION 6.9. Ownership of Properties. The Borrower and
each of its Subsidiaries owns good and marketable title to all of
its real properties and good title to all its personal property
and other assets, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges or
claims (including infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant
to Section 7.2.3 or disclosed pursuant to Section 6.7.
SECTION 6.10. Taxes. The Borrower and each of its
Subsidiaries has filed all tax returns and reports required by
law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such
taxes or charges which are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the
execution and delivery of this Agreement and prior to the date of
any Credit Extension hereunder, no steps have been taken to
terminate any Pension Plan, and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise
to a Lien under section 302(f) of ERISA. No condition exists or
event or transaction has occurred with respect to any Pension
Plan which might result in the incurrence by the Borrower or any
member of the Controlled Group of any material liability, fine or
penalty. Except as disclosed in Item 6.11 ("Employee Benefit
Plans") of the Disclosure Schedule, neither the Borrower nor any
member of the Controlled Group has any contingent liability with
respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part
6 of Title I of ERISA.
SECTION 6.12. Environmental Warranties. To the best
knowledge of the Borrower, after all reasonable inquiry:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its
Subsidiaries have been, and continue to be, owned or leased
by the Borrower or the Borrower and its Subsidiaries in
material compliance with all Environmental Laws except for
such noncompliance, that singly or in the aggregate, does
not have or may not reasonably be expected to have a
materially adverse effect on the financial condition,
operations, assets, business, properties or prospects of
the Borrower or the Borrower and its Subsidiaries, taken as
a whole;
(b) there have been no past, and there are no pending
or threatened
(i) claims, complaints, notices or requests for
information received by the Borrower or any of its
Subsidiaries with respect to any alleged violation of
any Environmental Law, or
(ii) complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding
potential liability under any Environmental Law,
that, singly or in the aggregate, have, or may reasonably
be expected to have, a materially adverse effect on the
financial condition, operations, assets, business,
properties or prospects of the Borrower or the Borrower and
its Subsidiaries, taken as a whole;
(c) there have been no Releases of Hazardous
Materials at, on or under any property now owned or leased
or, to the knowledge of the Borrower, previously owned or
leased, by the Borrower or any of its Subsidiaries that,
singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the
financial condition, operations, assets, business,
properties or prospects of the Borrower or the Borrower and
its Subsidiaries, taken as a whole;
(d) the Borrower and its Subsidiaries have been
issued and are in material compliance with all permits,
certificates, approvals, licenses and other authorizations
relating to environmental matters and necessary for their
businesses except such permits, certificates, approvals,
licenses and authorizations the absence of which will not,
singly or in the aggregate, have or may reasonably be
expected to have, a materially adverse effect on the
financial condition, operations, assets, business,
properties or prospects of the Borrower or the Borrower and
its Subsidiaries, taken as a whole;
(e) neither the Borrower nor any Subsidiary of the
Borrower has received any notification that any property
now or previously owned or leased by the Borrower or any of
its Subsidiaries is listed or proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS
or on any similar state list of sites requiring
investigation or clean-up except for (i) as disclosed in
Item 6.12 ("Environmental Warranties") of the Disclosure
Schedule and (ii) such properties as disclosed by the
Borrower to the Lenders pursuant to clause (b)(i)(B)(I) of
Section 7.1.6 and for which the Borrower's or such
Subsidiaries' liability in respect thereof is not singly or
in the aggregate reasonably expected to have a material
adverse effect on the financial condition, operations,
assets, businesses, operations or prospects of the Borrower
or the Borrower and its Subsidiaries, taken as a whole;
(f) there is no liability related to offsite
transport, treatment or disposal of Hazardous Material
generated or handled by the Borrower or any of its
Subsidiaries except for such liability that singly, or in
the aggregate, which may not reasonably be expected to have
a materially adverse effect on the financial condition,
operations, assets, business, properties or prospects of
the Borrower or the Borrower and its Subsidiaries, taken as
a whole;
(g) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under
any property now or, to the knowledge of the Borrower,
previously, owned or leased by the Borrower or any of its
Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect
on the financial condition, operations, assets, business,
properties or prospects of the Borrower or the Borrower and
its Subsidiaries, taken as a whole;
(h) neither the Borrower nor any Subsidiary of the
Borrower has directly transported or directly arranged for
the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS
or on any similar state list or which is the subject of
federal, state or local enforcement actions or other
investigations which may lead to material claims against
the Borrower or such Subsidiary thereof for any remedial
work, damage to natural resources or personal injury,
including claims under CERCLA which claims, singly or in
the aggregate, may reasonably be expected to have a
material adverse effect on the financial condition,
operations, assets, businesses, properties, or prospects or
the Borrower or the Borrower and its Subsidiaries, taken as
a whole;
(i) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously, owned
or leased by the Borrower or any Subsidiary of the Borrower
that, singly or in the aggregate, have, or may reasonably
be expected to have, a material adverse effect on the
financial condition, operations, assets, business,
properties or prospects of the Borrower or the Borrower and
its Subsidiaries, taken as a whole; and
(j) other than as stated above, no conditions exist
at, on or under any property now or previously, owned or
leased by the Borrower which, with the passage of time, or
the giving of notice or both, would give rise to liability
under any Environmental Law that, singly or in the
aggregate, have or may reasonably be expected to have a
materially adverse effect on the financial condition,
operations, assets, business, properties or prospects of
the Borrower or the Borrower and its Subsidiaries, taken as
a whole.
SECTION 6.13. Regulations G, U and X. Neither the
Borrower nor any Subsidiary is engaged in the business of
extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loan will be used for a purpose
which violates, or would be inconsistent with, F.R.S. Board
Regulation G, U or X. Terms for which meanings are provided in
F.R.S. Board Regulation G, U or X or any regulations substituted
therefor, as from time to time in effect, are used in this
Section with such meanings.
SECTION 6.14. Accuracy of Information. All factual
information heretofore or contemporaneously furnished by or on
behalf of the Borrower in writing to any Agent or any Lender for
purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Borrower
to any Agent, or any Lender will be, true and accurate in every
material respect on the date as of which such information is
dated or certified and, if heretofore delivered, as of the date
of execution and delivery of this Agreement by the Administrative
Agent, any Co-Agent and such Lender, and such information is not,
or shall not be, as the case may be, incomplete by omitting to
state any material fact necessary to make such information not
misleading.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees
with the Co-Agents, the Administrative Agent and each Lender
that, until all Commitments have terminated and all Obligations
have been paid and performed in full, the Borrower will perform
the obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices,
etc. The Borrower will furnish, or will cause to be furnished,
to each Lender and the Administrative Agent copies of the
following financial statements, reports, notices and information:
(a) as soon as available and in any event within
45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower, consolidated
balance sheets of the Borrower and its Subsidiaries as of
the end of such Fiscal Quarter and consolidated statements
of earnings and cash flow of the Borrower and its
Subsidiaries for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, certified by
the chief financial Authorized Officer of the Borrower;
(b) as soon as available and in any event within
90 days after the end of each Fiscal Year of the Borrower,
a copy of the annual audit report for such Fiscal Year for
the Borrower and its Subsidiaries, including therein
consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and
consolidated statements of earnings and cash flow of the
Borrower and its Subsidiaries for such Fiscal Year, in each
case certified (without any Impermissible Qualification) in
a manner acceptable to the Administrative Agent and the
Required Lenders by KMPG Peat Marwick or other independent
public accountants reasonably acceptable to the
Administrative Agent and the Required Lenders, together
with a certificate from such accountants containing a
computation of, and showing compliance with, each of the
financial ratios and restrictions contained in
Section 7.2.4;
(c) as soon as available and in any event within
45 days after the end of each Fiscal Quarter, a completed
Compliance Certificate, which shall also include a
statement as to (i) the total market value of precious
metal held on consignment by the Borrower and its
Subsidiaries, (ii) the total number of ounces of precious
metal held on consignment at each Plant (as defined in the
Consignment Facilities) under the terms of the Consignment
Facilities, and (iii) the total number of ounces of U.S.
Bullion (as defined in the Consignment Facilities) located
at each Plant;
(d) as soon as possible and in any event within five
days after the occurrence of each Default, a statement of
the chief financial Authorized Officer setting forth
details of such Default and the action which the Borrower
has taken and proposes to take with respect thereto;
(e) as soon as possible and in any event within three
days after (x) the occurrence of any material adverse
development with respect to any litigation, action or
proceeding described in Section 6.7 or (y) the commencement
of any litigation, action or proceeding of the type
described in Section 6.7, notice thereof and copies of all
documentation relating thereto;
(f) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to any of
its security holders, and all reports and registration
statements without exhibits incorporated by reference
therein which the Borrower or any of its Subsidiaries files
with the Securities and Exchange Commission or any national
securities exchange;
(g) immediately upon becoming aware of the
institution of any steps by the Borrower or any other
Person to terminate any Pension Plan, or the failure to
make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under section
302(f) of ERISA, or the taking of any action with respect
to a Pension Plan which could result in the requirement
that the Borrower furnish a bond or other security to the
PBGC or such Pension Plan, or the occurrence of any event
with respect to any Pension Plan which could result in the
incurrence by the Borrower of any material liability, fine
or penalty, or any material increase in the contingent
liability of the Borrower with respect to any post-
retirement Welfare Plan benefit, notice thereof and copies
of all documentation relating thereto; and
(h) such other information respecting the condition
or operations, financial or otherwise, of the Borrower or
any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably
request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower
will, and will cause each of its Subsidiaries to, comply in all
material respects with all applicable laws, rules, regulations
and orders, such compliance to include (without limitation):
(a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation except
where the failure to so qualify would not have a material
adverse effect on the financial condition, operations,
assets, business, properties or prospects of the Borrower
or the Borrower and its Subsidiaries, taken as a whole, as
the case may be; and
(b) the payment, before the same become delinquent,
of all taxes, assessments and governmental charges imposed
upon it or upon its property except to the extent being
diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. The Borrower
will, and will cause each of its Subsidiaries to, maintain,
preserve, protect and keep those of its properties in good
repair, working order and condition, and make necessary useful or
necessary and proper repairs, renewals and replacements so that
its business carried on in connection therewith may be properly
conducted at all times unless the Borrower determines in good
faith that the continued maintenance of any of its properties is
no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will
cause each of its Subsidiaries to, maintain or cause to be
maintained with responsible insurance companies insurance with
respect to its properties and business against such casualties
and contingencies and of such types and in such amounts as is
customary in the case of similar businesses and will, upon
request of the Administrative Agent, furnish to each Lender at
reasonable intervals a certificate of an Authorized Officer
setting forth the nature and extent of all insurance maintained
by the Borrower and its Subsidiaries in accordance with this
Section.
SECTION 7.1.5. Books and Records. The Borrower will, and
will cause each of its Subsidiaries to, keep books and records
which accurately reflect all of its business affairs and
transactions and permit the Administrative Agent and each Lender
or any of their respective representatives, at reasonable times
and intervals, to visit all of its offices, to discuss its
financial matters with its officers and independent public
accountant (and the Borrower hereby authorizes such independent
public accountant to discuss the Borrower's financial matters
with each Lender or its representatives whether or not any
representative of the Borrower is present) and to examine any of
its books or other corporate records. The Borrower shall pay any
fees of such independent public accountant incurred in connection
with the Administrative Agent's (on behalf of the Lender's)
exercise of its rights pursuant to this Section; provided, that
after the occurrence and during the continuation of a Default,
the expenses of a Lender (other than the Administrative Agent)
exercising its rights pursuant to this Section shall be for the
account of the Borrower. In addition, following the delivery of
any notification required pursuant to clause (b)(i) of Section
7.1.6, the Borrower agrees to permit the Administrative Agent to
discuss with the relevant authorities the status and formation of
plans in respect of such claims, complaints, notices or
inquiries, and to attend any meeting or otherwise be present at
conferences with management of the Borrower and consult with
their outside environmental consultants and engineers (and the
Borrower hereby authorizes such environmental consultants and
engineers to discuss such environmental matters with the
Administrative Agent or its representatives whether or not any
representative of the Borrower is present) in connection
therewith, all at the Borrower's expense.
SECTION 7.1.6. Environmental Covenant. The Borrower will,
and will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and
properties in material compliance with all Environmental
Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental
matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) (i) immediately notify the Administrative Agent
(A) and provide copies upon receipt of all material written
claims, complaints, notices or inquiries relating to the
environmental condition of its facilities and properties or
non-compliance with Environmental Laws which could singly
or in the aggregate reasonably be expected to have a
material adverse effect on the financial condition,
operations, assets, businesses, properties or prospects of
the Borrower or the Borrower and its Subsidiaries, taken as
a whole and (B) (I) of the listing or proposal for listing
of any property owned or leased by the Borrower or any of
its Subsidiaries on the National Priorities List pursuant
to CERCLA, on the CERCLIS or on any similar state list of
sites requiring investigation or cleanup and (II) upon its
determination by the Borrower or its Subsidiary, as the
case may be, of the estimate of the amount of the liability
of the Borrower or such Subsidiary with respect to any such
property, and, (ii) shall either diligently contest or
pursue settlement of, in good faith and by appropriate
proceedings, or promptly undertake to correct such
condition or non-compliance and have dismissed any such
actions and proceedings relating to compliance with
Environmental Laws; and
(c) provide such information and certifications which
the Administrative Agent may reasonably request from time
to time to evidence compliance with this Section 7.1.6.
SECTION 7.2. Negative Covenants. The Borrower agrees with
the Co-Agents, the Administrative Agent and each Lender that,
until all Commitments have terminated and all Obligations have
been paid and performed in full, the Borrower will perform the
obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will
not, and will not permit any of its Subsidiaries to, engage in
any business activity which is substantially different from those
described in the first recital and such activities as may be
incidental or related thereto.
SECTION 7.2.2. Designated Debt, Letters of Credit;
Subsidiary Debt. (a) The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to
exist or otherwise become or be liable in respect of any
Designated Debt or Indebtedness in respect of letters of credit
(whether or not drawn), other than
(i) in the case of Designated Debt, to the extent that
the aggregate amount of Designated Debt does not exceed the
sum of:
(A) 90% of the Market Value of the gold, silver
and platinum group metals and the gold, silver and
platinum group metals' content of alloys then owned by
the Borrower and its Subsidiaries in inventory and not
held under consignment;
plus
(B) 75% of Eligible Receivables of the Borrower
and its Subsidiaries;
plus
(C) 100% of the cash and Cash Equivalent
Investments of the Borrower and its Subsidiaries, but
only to the extent that such cash and Cash Equivalent
Investments are not subject to any Lien and (if held
or owned by a Subsidiary) are transferable to the
Borrower without the consent or approval of any other
Person; and
(ii) in the case of Indebtedness in respect of
letters of credit (whether or not drawn)
(A) the Letters of Credit (as such term is
defined in the Long Term Credit Agreement); and
(B) Indebtedness in respect of other letters of
credit in an aggregate face amount not to exceed 10%
of Adjusted Consolidated Tangible Net Worth.
(b) Notwithstanding clause (a) above or clause (b) of
Section 7.2.4, no Subsidiary of the Borrower shall create, incur,
assume or suffer to exist or otherwise become or be liable in
respect of any Debt except:
(i) Debt existing on the Effective Date and described
in Item 7.2.2(b) ("Existing Subsidiary Debt") of the
Disclosure Schedule; and
(ii) Debt which in the aggregate for all such
Subsidiaries does not exceed 10% of Adjusted Consolidated
Tangible Net Worth.
SECTION 7.2.3. Liens. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon any of its property, revenues or
assets (including any capital stock of the Borrower's
Subsidiaries), whether now owned or hereafter acquired, except:
(a) Liens securing Indebtedness of a Subsidiary to
the Borrower;
(b) Liens granted prior to the Effective Date to
secure payment of Indebtedness identified in Item 7.2.3(b)
("Ongoing Indebtedness") and 7.2.2 (b) ("Existing
Subsidiary Debt") of the Disclosure Schedule;
(c) Liens for taxes, assessments or other
governmental charges or levies not at the time delinquent
or thereafter payable without penalty or being diligently
contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(d) Liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course
of business for sums not overdue or being diligently
contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(e) Liens incurred in the ordinary course of business
in connection with workmen's compensation, unemployment
insurance or other forms of governmental insurance or
benefits, or to secure performance of tenders, statutory
obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or
to secure obligations on surety or appeal bonds;
(f) judgment Liens in existence less than 15 days
after the entry thereof or with respect to which execution
has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained
with responsible insurance companies;
(g) easements, rights-of-way, zoning and similar
restrictions and other similar charges or encumbrances not
interfering with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries and which do not
impair materially the use thereof by the Borrower or any of
its Subsidiaries;
(h) Liens existing on the property of Subsidiaries on
the date such Subsidiary is acquired which Lien was not
incurred in connection with or in contemplation of the
acquisition of such Subsidiary;
(i) Liens on assets acquired by the Borrower or any
Subsidiary existing at the time of acquisition of such
asset which Liens are not created in connection with or in
contemplation of such acquisition and which do not attach
to any other assets of the Borrower or such Subsidiary, as
the case may be;
(j) Liens on properties the underlying amount secured
thereby of which do not in the aggregate at any one time
exceed 20% of Adjusted Consolidated Tangible Net Worth less
the amount secured by Liens of properties so encumbered by
Liens permitted under clauses (b), (h) and (i) above, and
clause (l) below;
(k) leases or subleases granted to other Persons not
materially interfering with the conduct of the business of
the Borrower or any Subsidiary;
(l) renewals and extensions of any of the foregoing
so long as the Indebtedness secured thereby does not
increase; and
(m) Liens granted in connection with the consignment
of precious metal to be located at the Plants (as defined
in the Consignment Facilities) under the terms of the
Consignment Facilities and related documents executed in
connection therewith.
SECTION 7.2.4. Financial Condition. The Borrower will not
permit:
(a) its Adjusted Consolidated Tangible Net Worth as
at the last day of any Fiscal Quarter during any period set
forth below to be less than the amount set forth opposite
such period:
Adjusted Consolidated
Period Tangible Net Worth
07/01/94 through 09/30/94 $128,000,000
10/01/94 through 12/31/94 130,000,000
01/01/95 and thereafter 130,000,000 plus 25%
of the Borrower's
Net Income for the
immediately
preceding Fiscal
Year;
(b) its Leverage Ratio as of the last day of any
Fiscal Quarter to be greater than 1.70:1.00; or
(c) the Interest Coverage Ratio as at the last day of
any Fiscal Quarter during any period set forth below to be
less than the ratio set forth opposite such period:
Interest
Period Coverage Ratio
07/01/94 through 09/30/94 1.90:1.00
10/01/94 through 12/31/94 2.00:1.00
01/01/95 through 03/31/95 2.10:1.00
04/01/95 through 06/30/95 2.20:1.00
07/01/95 and each Fiscal
Quarter thereafter 2.25:1.00.
SECTION 7.2.5. Investments. The Borrower will not, and
will not permit any of its Subsidiaries to, make, incur, assume
or suffer to exist any Investment in any other Person, except:
(a) Investments existing on the Effective Date and
identified in Item 7.2.5(a) ("Ongoing Investments") of the
Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, all Investments made or
committed to be made as Capital Expenditures;
(d) in the ordinary course of business, Investments
by the Borrower in any of its Subsidiaries existing as of
the date of this Agreement, or by any such Subsidiary in
any of its Subsidiaries existing as of the date of this
Agreement, by way of contributions to capital or loans or
advances;
(e) Investments taken in satisfaction of
Indebtedness, provided, that the aggregate amount of such
Investments shall not exceed $1,000,000 in any Fiscal Year
of the Borrower;
(f) Investments in other Persons engaged in business
activities which are substantially the same as those
described in the first recital and such activities as may
be incidental or related thereto, provided that upon making
such Investment such Person becomes a Subsidiary of the
Borrower and such Investment is made solely with cash or
the issuance of the Borrower's capital stock (or a
combination thereof); and
(g) other Investments in an aggregate amount at the
time of determination not to exceed 5% of Adjusted
Consolidated Tangible Net Worth;
provided, however, that
(h) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that
such Investment if made thereafter would not comply with
such requirements; and
(i) no Investment otherwise permitted by clause (d),
(e), (f) or (g) shall be permitted to be made if,
immediately before or after giving effect thereto, any
Default shall have occurred and be continuing.
SECTION 7.2.6. Restricted Payments, etc. On and at all
times after the Effective Date:
(a) the Borrower will not declare, pay or make any
dividend or distribution (in cash, property or obligations)
on any shares of any class of capital stock (now or
hereafter outstanding) of the Borrower or on any warrants,
options or other rights with respect to any shares of any
class of capital stock (now or hereafter outstanding) of
the Borrower (other than dividends or distributions payable
in its common stock or warrants to purchase its common
stock or splitups or reclassifications of its stock into
additional or other shares of its common stock and other
than ordinary cash dividends made on a quarterly basis in
respect of the outstanding common stock of the Borrower,
but only to the extent that both before and after giving
effect to the payment of such dividends, no Event of
Default shall have occurred and be continuing) or apply, or
permit any of its Subsidiaries to apply, any of its funds,
property or assets to the purchase, redemption, sinking
fund or other retirement of, or agree or permit any of its
Subsidiaries to purchase or redeem, any shares of any class
of capital stock (now or hereafter outstanding) of the
Borrower, or warrants, options or other rights with respect
to any shares of any class of capital stock (now or
hereafter outstanding) of the Borrower; provided that the
Borrower may purchase shares of its capital stock so long
as before and after giving effect to such purchase no
Default has occurred and is continuing or is created
thereby; and
(b) the Borrower will not, and will not permit any
Subsidiary to, make any deposit for any of the foregoing
purposes, except to the extent any such cash dividend on
the Borrower's common stock is permitted in accordance with
clause (a) of this Section.
SECTION 7.2.7. Transactions with Affiliates. The Borrower
will not, and will not permit any of its Subsidiaries to, enter
into, or cause, suffer or permit to exist any arrangement or
contract with any of its other Affiliates (other than the
Borrower or any of its Subsidiaries) unless such arrangement or
contract is fair and equitable to the Borrower or such Subsidiary
and is an arrangement or contract of the kind which would be
entered into by a prudent Person in the position of the Borrower
or such Subsidiary with a Person which is not one of its
Affiliates.
SECTION 7.2.8. Long Term Rental Obligations. The Borrower
will not, and will not permit any of its Subsidiaries to, enter
into at any time any arrangement (other than the Consignment
Facilities) exceeding three years in duration which does not
create a Capitalized Lease Liability and which involves the
leasing by the Borrower or any of its Subsidiaries from any
lessor of any real or personal property (or any interest
therein), except arrangements which, together with all other such
arrangements which shall then be in effect, will not require the
payment of an aggregate amount of rentals by the Borrower and its
Subsidiaries in excess of an amount equal to (excluding
escalations resulting from a rise in the consumer price or
similar index) 5% of Adjusted Consolidated Tangible Net Worth
measured at the time of the incurrence of such obligation;
provided, however, that any calculation made for purposes of this
Section shall exclude any amounts required to be expended for
maintenance and repairs, insurance, taxes, assessments, and other
similar charges.
SECTION 7.2.9. Take or Pay Contracts. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into
or be a party to any arrangement for the purchase of materials,
supplies, other property or services if such arrangement by its
express terms requires that payment be made by the Borrower or
such Subsidiary regardless of whether such materials, supplies,
other property or services are delivered or furnished to it.
SECTION 7.2.10. Consolidation, Merger, etc. The Borrower
will not, and will not permit any of its Subsidiaries to,
liquidate or dissolve, consolidate with, or merge into or with,
any other corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division
thereof) except
(a) any such Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Borrower
or any other Subsidiary, and the assets or stock of any
Subsidiary may be purchased or otherwise acquired by the
Borrower or any other Subsidiary;
(b) the Borrower may merge or consolidate with any
other corporation, provided that (i) the Borrower shall be
the continuing or surviving corporation, or, if the
Borrower is not the surviving corporation, then the
successor corporation shall be a solvent corporation
organized under the laws of any State of the United States
of America and shall expressly assume in a writing
satisfactory in form and substance to the Required Lenders,
all of the obligations of the Borrower under this Agreement
and under the Notes, including all covenants herein and
therein contained, and such successor corporation shall
succeed to and be substituted for the Borrower with the
same effect as if it had been a party hereto, (ii) after
giving effect to such merger or consolidation the Borrower
as the continuing or surviving corporation or the successor
corporation could incur an additional $1.00 of Designated
Debt under clause (a)(i) of Section 7.2.2, (iii) no Default
shall have occurred and be continuing and, after giving
effect to such merger or consolidation, no Default would
occur and be continuing and (iv) after giving effect to
such merger or consolidation, at least 75% of the gold,
silver and platinum group metals and the gold, silver and
platinum group metals' content of alloys then held by the
Borrower in inventory (and not under consignment), taken at
their Market Value, and at least 75% of the book value of
all of the other assets of the Borrower, shall be located
within the United States;
(c) so long as no Default has occurred and is
continuing or would occur after giving effect thereto, the
Borrower or any of its Subsidiaries may purchase all or
substantially all of the assets of any Person, or acquire
such Person by merger, if made as a Capital Expenditure or
by Investment if permitted (without duplication) by Section
7.2.5.
SECTION 7.2.11. Asset Dispositions, etc. The Borrower
will not, and will not permit any of its Subsidiaries to, sell,
transfer, lease, contribute or otherwise convey, or grant
options, warrants or other rights with respect to, any of its
assets (including accounts receivable and capital stock of
Subsidiaries) to any Person, unless
(a) such sale, transfer, lease, contribution or
conveyance is in the ordinary course of its business or is
permitted by Section 7.2.10;
(b) the assets subject to such sale, transfer, lease,
contribution or conveyance are identified as discontinued
operations or otherwise identified as assets to be disposed
in the Borrower's Current Report on Form 8-K, dated
June 27, 1991;
(c) if such sale, transfer, lease, contribution or
conveyance is not in the ordinary course of business and
not otherwise permitted hereunder, the assets are sold for
fair value (as determined by the Board of Directors of the
Borrower or the Subsidiary owning such assets) and the
commitments of the lenders under the Long Term Credit
Agreement are reduced by an amount equal to the Net
Disposition Proceeds (as defined in the Long Term Credit
Agreement) of such sale, transfer, lease, contribution or
conveyance; or
(d) the aggregate book value or market value, if
higher (determined as to particular assets as of the
respective date of disposition thereof) (other than in
accordance with clauses (a), (b) and (c) above) of all
assets sold, transferred, leased, contributed or otherwise
conveyed by the Borrower and its Subsidiaries (i) since the
Effective Date, does not exceed 10% of the consolidated
assets of the Borrower as of the Effective Date, and
(ii) does not constitute assets which contributed more than
10% of operating profit contribution during any of the
three most recently completed Fiscal Years of the Borrower.
SECTION 7.2.12. Restrictive Agreements, etc. The Borrower
will not, and will not permit any of its Subsidiaries to, enter
into any agreement (excluding this Agreement, any other Loan
Document, the Long Term Credit Agreement, the Consignment
Facilities and any agreement governing any Indebtedness in
existence on the Effective Date as in effect on the Effective
Date) prohibiting
(a) the ability of the Borrower to amend or otherwise
modify this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any
payments, directly or indirectly, to the Borrower by way of
dividends, advances, repayments of loans or advances,
reimbursements of management and other intercompany
charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which
restricts the ability of any such Subsidiary to make any
payment, directly or indirectly, to the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the
following events or occurrences described in this Section 8.1
shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) The
Borrower shall default in the payment or prepayment when due of
any principal of any Loan; or (b) the Borrower shall default (and
such default shall continue unremedied for a period of three
Business Days) in the payment when due of any interest on any
Loan or fee or of any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or
warranty of the Borrower made or deemed to be made hereunder or
in any other Loan Document or any other writing or certificate
furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender for the purposes of or in connection with
this Agreement or any such other Loan Document (including any
certificates delivered pursuant to Article V) is or shall be
incorrect when made or deemed made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and
Obligations. The Borrower shall default in the due performance
and observance of any of its obligations under Section 7.2 or
Section 7.1.6.
SECTION 8.1.4. Non-Performance of Other Covenants and
Obligations. The Borrower shall default in the due performance
and observance of any other agreement contained herein or in any
other Loan Document (other than as set forth in Section 8.1.1 or
8.1.3), and such default shall continue unremedied for a period
of 10 Business Days after notice thereof shall have been given to
the Borrower by the Administrative Agent or any Lender.
SECTION 8.1.5. Default on Other Indebtedness or
Agreements. A default shall occur in the payment when due
(subject to any applicable grace period), whether by acceleration
or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any of its
Subsidiaries having a principal amount, individually or in the
aggregate, in excess of $1,000,000, or a default shall occur in
the performance or observance of any obligation or condition with
respect to such Indebtedness if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default
shall continue unremedied for any applicable period of time
sufficient to permit the holder or holders of such Indebtedness,
or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed
maturity or any Event of Default (as defined in any of the
Consignment Facilities or the Revolving Credit Agreement) shall
have occurred and be continuing under any of the Consignment
Facilities or the Revolving Credit Agreement, respectively.
SECTION 8.1.6. Judgments. Any judgment or order for the
payment of money in excess of $1,000,000 (excluding that portion
of a judgment covered by insurance as to which such insurance
carrier has acknowledged liability) shall be rendered against the
Borrower or any of its Subsidiaries or Affiliates (including
joint ventures) and either
(a) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order; or
(b) 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.
SECTION 8.1.7. Pension Plans. Any of the following events
shall occur with respect to any Pension Plan
(a) the institution of any steps by the Borrower, any
member of its Controlled Group or any other Person to
terminate a Pension Plan if, as a result of such
termination, the Borrower or any such member could be
required to make a contribution to such Pension Plan, or
could reasonably expect to incur a liability or obligation
to such Pension Plan, in excess of $1,000,000; or
(b) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA.
SECTION 8.1.8. Control of the Borrower. Any Change in
Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower
or any of its Subsidiaries (including joint ventures) shall
(a) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness to pay,
debts as they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other
custodian for the Borrower or any of its Subsidiaries or
joint ventures (other than Non-Recourse Joint Ventures) or
any property of any thereof, or make a general assignment
for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of
a trustee, receiver, sequestrator or other custodian for
the Borrower or any of its Subsidiaries or joint ventures
(other than Non-Recourse Joint Ventures) or for a
substantial part of the property of any thereof, and such
trustee, receiver, sequestrator or other custodian shall
not be discharged within 60 days, provided that the
Borrower, each Subsidiary and each joint venture hereby
expressly authorizes the Administrative Agent and each
Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case
or proceeding under any bankruptcy or insolvency law, or
any dissolution, winding up or liquidation proceeding, in
respect of the Borrower or any of its Subsidiaries or joint
ventures (other than Non-Recourse Joint Ventures), and, if
any such case or proceeding is not commenced by the
Borrower or such Subsidiary or such joint venture, such
case or proceeding shall be consented to or acquiesced in
by the Borrower or such Subsidiary or such joint venture or
shall result in the entry of an order for relief or shall
remain for 60 days undismissed, provided that the Borrower,
each Subsidiary and each such joint venture hereby
expressly authorizes the Administrative Agent and each
Lender to appear in any court conducting any such case or
proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents; or
(e) take any action authorizing, or in furtherance
of, any of the foregoing;
provided, that, the foregoing shall not apply to any Subsidiary
or joint venture of the Borrower, the value of whose assets in
the aggregate for the Fiscal Quarter most recently ended
accounted for an amount equal to or less than 5% of Adjusted
Consolidated Tangible Net Worth.
SECTION 8.2. Action if Bankruptcy. If any Event of
Default described in clauses (a) through (d) of Section 8.1.9
shall occur, the Commitments of each Lender (if not theretofore
terminated) shall automatically terminate, the Stated Maturity
Date shall automatically be accelerated and the outstanding
principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and
payable, without notice or demand.
SECTION 8.3. Action if Other Event of Default. If any
Event of Default (other than any Event of Default described in
clauses (a) through (d) of Section 8.1.9) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required Lenders,
shall by notice to the Borrower declare the Stated Maturity Date
to be accelerated and/or direct the Administrative Agent to
declare all or any portion of the outstanding principal amount of
the Loans and other Obligations to be due and payable and/or the
Commitments of each Lender (if not theretofore terminated) to be
terminated, whereupon the Stated Maturity Date shall be
accelerated, the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be
and become immediately due and payable, without further notice,
demand or presentment, and/or, as the case may be, the
Commitments shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints each of
Scotiabank, and Chemical as its Co-Agent, and Scotiabank as its
Administrative Agent, under and for purposes of this Agreement,
the Notes and each other Loan Document. Each Lender authorizes
Scotiabank, in its capacity as the Administrative Agent, to act
on behalf of such Lender under this Agreement, the Notes and each
other Loan Document in such capacity and, in the absence of other
written instructions from the Required Lenders received from time
to time by the Administrative Agent (with respect to which the
Administrative Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent
by the terms hereof and thereof, together with such powers as may
be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement)
the Administrative Agent, pro rata according to such Lender's
Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever to the extent not otherwise paid by the
Borrower which may at any time be imposed on, incurred by, or
asserted against, the Administrative Agent in any way relating to
or arising out of this Agreement, the Notes and any other Loan
Document, including reasonable attorneys' fees, and as to which
the Administrative Agent is required to be, but is not reimbursed
by the Borrower; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are
determined to have resulted solely from the Administrative
Agent's gross negligence or wilful misconduct. The
Administrative Agent shall not be required to take any action
hereunder, under the Notes or under any other Loan Document
except such actions expressly provided for hereunder, or to
prosecute or defend any suit in respect of this Agreement, the
Notes or any other Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in the Administrative
Agent's determination, inadequate, the Administrative Agent may
call for additional indemnification from the Lenders and cease to
do the acts indemnified against hereunder until such additional
indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the
Administrative Agent shall have been notified by telephone,
confirmed in writing, by any Lender by 5:00 p.m. (New York City
time), on the day prior to a Borrowing of other than Base Rate
Loans that are to be made on the same date requested by the
Borrower that such Lender will not make available the amount
which would constitute its Percentage of such Borrowing in the
case of Revolving Loans, or the amount of its Competitive Bid
Loan Offer that has been accepted by the Borrower pursuant to
clause (e)(ii) of Section 2.4, in the case of Competitive Bid
Loans, in each case on the date specified therefor, the
Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance
upon such assumption, make available to the Borrower a
corresponding amount. In the case of a Borrowing of Base Rate
Loans that are to be made on the same date requested by the
Borrower, the Administrative Agent may assume that each Lender
will make available to the Administrative Agent the amount which
would constitute its Percentage of such Borrowing in the case of
Revolving Loans, or the amount of its Competitive Bid Loan Offer
that has been accepted by the Borrower pursuant to clause (e)(ii)
of Section 2.4, in the case of Competitive Bid Loans, and, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent that such Lender
shall not have made such amount available to the Administrative
Agent, such Lender and the Borrower severally agree to repay the
Administrative Agent forthwith on demand, without duplication,
such corresponding amount together with interest thereon, for
each day from the date the Administrative Agent made such amount
available to the Borrower to the date such amount is repaid to
the Administrative Agent, in the case of the Borrower, at the
interest rate applicable at the time to Loans comprising such
Borrowing, and in the case of such Lender, for the period from
the date such funds were advanced to the Borrower to (and
including) three days thereafter, at the rate customarily charged
for inter-bank loans in the U.S., and following such third day,
at the interest rate applicable at the time to Loans comprising
such Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative
Agent nor any of its directors, officers, employees or agents
shall be liable to any Lender for any action taken or omitted to
be taken by it under this Agreement or any other Loan Document,
or in connection herewith or therewith, except for its own wilful
misconduct or gross negligence, nor responsible for any recitals
or warranties herein or therein, nor for the effectiveness, or,
other than with respect to the Administrative Agent,
enforceability, validity or due execution of this Agreement or
any other Loan Document (as it relates to the Administrative
Agent), nor to make any inquiry respecting the performance by the
Borrower of its obligations hereunder or under any other Loan
Document. Any such inquiry which may be made by the
Administrative Agent shall not obligate it to make any further
inquiry or to take any action. The Administrative Agent shall be
entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing
which the Administrative Agent believes to be genuine and to have
been presented by a proper Person.
SECTION 9.4. Successor. The Administrative Agent may
resign as such at any time upon at least 30 days' prior notice to
the Borrower and all Lenders. If the Administrative Agent at any
time shall resign, the Required Lenders may, with the written
consent of the Borrower so long as no Default has occurred and is
continuing (which consent shall not be unreasonably withheld),
appoint another Lender as a successor Administrative Agent, which
shall thereupon (subject to its consent) become the
Administrative Agent hereunder. If no successor Administrative
Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving notice of resignation,
then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall
(subject to its consent) be one of the Lenders or a commercial
banking institution organized under the laws of the U.S. (or any
State thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to
receive from the retiring Administrative Agent such documents of
transfer and assignment as such successor Administrative Agent
may reasonably request, and shall thereupon succeed to and become
vested with all rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions
of
(a) this Article IX shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
the Administrative Agent under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to
inure to its benefit.
SECTION 9.5. Credit Extensions by an Agent. Each Agent
shall have the same rights and powers with respect to (x) the
Loans made by it or any of its respective Affiliates, and (y) the
Notes held by it or any of its respective Affiliates as any other
Lender and may exercise the same as if it were not an Agent.
Each Agent and its respective Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business
with the Borrower or any Subsidiary or Affiliate of the Borrower
as if such Agent, as the case may be, were not an Agent
hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges
that it has, independently of the Administrative Agent, each Co-
Agent and each other Lender, and based on such Lender's review of
the financial information of the Borrower, this Agreement, the
other Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents,
information and investigations as such Lender has deemed
appropriate, made its own credit decision to extend its
Commitment. Each Lender also acknowledges that it will,
independently of the Administrative Agent and each other Lender,
and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time
to time any rights and privileges available to it under this
Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall
give prompt notice to each Lender of each notice or request
required or permitted to be given to the Administrative Agent by
the Borrower pursuant to the terms of this Agreement (unless
concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document
or instrument received for its account and copies of all other
communications received by the Administrative Agent from the
Borrower for distribution to the Lenders by the Administrative
Agent in accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of
this Agreement and of each other Loan Document may from time to
time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the
Borrower and the Required Lenders; provided, however, that no
such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Lenders or by the
Required Lenders shall be effective unless consented to by
each Lender;
(b) modify this Section 10.1, change the definition
of "Required Lenders", increase the Commitment Amount or
the Percentage of any Lender, or extend the Loan Commitment
Termination Date shall be made without the consent of each
Lender and each holder of a Note;
(c) extend the due date for, or reduce the amount of,
any scheduled or mandatory repayment or prepayment of
principal of or interest on or fees in respect of any Loan
or any other amounts payable to a Lender hereunder (or
reduce the principal amount of or rate of interest on any
Loan) shall be made without the consent of the holder of
that Note evidencing such Loan; or
(d) affect adversely the interests, rights or
obligations of an Agent qua such Agent shall be made
without consent of the Agent.
No failure or delay on the part of any Agent, any Lender or the
holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand
on the Borrower in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval
by any Agent, any Lender or the holder of any Note under this
Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 10.2. Notices. All notices and other
communications provided to any party hereto under this Agreement
or any other Loan Document shall be in writing or by facsimile
and addressed, delivered or transmitted to such party at its
address or facsimile number set forth below its signature hereto
or set forth in the Lender Assignment Agreement or at such other
address or facsimile number as may be designated by such party in
a notice to the other parties. Any notice, if mailed and
properly addressed with postage prepaid or if properly addressed
and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be
deemed given when transmitted upon receipt of electronic
confirmation of transmission.
SECTION 10.3. Payment of Costs and Expenses. The Borrower
agrees to pay on demand all reasonable out-of-pocket expenses of
the Administrative Agent, (including the reasonable fees and out-
of-pocket expenses of a single counsel to the Administrative
Agent and of local counsel, if any, who may be retained by
counsel to the Administrative Agent in connection with
(a) the negotiation, preparation, execution and
delivery of this Agreement and of each other Loan Document,
including schedules and exhibits, and any amendments, (the
costs and expenses associated with the formation of the
syndicate of Lenders) waivers, consents, supplements or
other modifications to this Agreement or any other Loan
Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are
consummated;
(b) the preparation and review of the form of any
document or instrument relevant to this Agreement or any
other Loan Document; and
(c) the administration and monitoring of this
Agreement and the Loan Documents, and compliance of the
parties hereto with respect to the terms hereof.
The Borrower further agrees to pay, and to save the Agents and
the Lenders harmless from all liability for, any stamp or other
taxes which may be payable in connection with the execution or
delivery of this Agreement, the Borrowings hereunder, or the
issuance of the Notes or any other Loan Documents. The Borrower
also agrees to reimburse each Agent and each Lender upon demand
for all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and legal expenses (including those fees and
legal expenses of internal counsel to such Lender allocated to
this Agreement)) incurred by such Agent or such Lender in
connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of any Obligations and
(y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the
execution and delivery of this Agreement by the Issuer and each
Lender and the extension of the Commitments, the Borrower hereby
indemnifies, exonerates and holds each Agent and each Lender and
each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and
harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any
such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds
of any Loan;
(b) the entering into and performance of this
Agreement and any other Loan Document by any of the
Indemnified Parties (including any action brought by or on
behalf of the Borrower as the result of any determination
by the Required Lenders pursuant to Article V not to make a
Credit Extension due to the failure of the Borrower to meet
the conditions for such Credit Extension);
(c) any investigation, litigation or proceeding
involving the Borrower or any of its Subsidiaries or
property now or previously owned or leased by the Borrower
or any of its Subsidiaries related to any environmental
cleanup, compliance or other similar matter relating to the
protection of the environment by the Borrower or any of its
Subsidiaries or the Release by the Borrower or any of its
Subsidiaries of any Hazardous Material; provided, that the
Indemnified Party shall have given the Borrower notice of
any such matter and an opportunity to participate in, but
not (except at the sole discretion of the Indemnified
Parties) to manage or control, the defense or settlement of
any such matters which may give rise to any Indemnified
Liabilities;
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or
releasing from, any real property owned or operated by the
Borrower or any Subsidiary thereof of any Hazardous
Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising
under any Environmental Law), regardless of whether caused
by, or within the control of, the Borrower or such
Subsidiary; or
(e) any breach of warranty contained in Section 6.12,
without giving effect to the exceptions based upon the
materially adverse effect and any qualification based on
materiality or knowledge;
except for any such Indemnified Liabilities arising for the
account of a particular Indemnified Party by reason of the
relevant Indemnified Party's gross negligence or wilful
misconduct. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, the Borrower hereby agrees
to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5. Survival. The obligations of the Borrower
under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the
obligations of the Lenders under Section 9.1, shall in each case
survive any termination of this Agreement, the payment in full of
all Obligations and the termination of all Commitments. The
representations and warranties made by the Borrower in this
Agreement and in each other Loan Document shall survive the
execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6. Severability. Any provision of this
Agreement or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Loan Document or
affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 10.7. Headings. The various headings of this
Agreement and of each other Loan Document are inserted for
convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness,
etc. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be executed by the
Borrower and the Administrative Agent and be deemed to be an
original and all of which shall constitute together but one and
the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower, each
Agent and each Lender (or notice thereof satisfactory to the
Administrative Agent) shall have been received by the
Administrative Agent and notice thereof shall have been given by
the Administrative Agent to the Borrower and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS
AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK. This Agreement, the Notes and the
other Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and
supersede any prior agreements, written or oral, with respect
thereto.
SECTION 10.10. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns;
provided, however, that:
(a) the Borrower may not assign or transfer its
rights or obligations hereunder without the prior written
consent of all Lenders; and
(b) the rights of sale, assignment and transfer of
the Lenders are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Note;
Participations in Loans and Note. Each Lender may assign, or
sell participations in, its Loans and Commitment to one or more
other Persons in accordance with this Section 10.11.
SECTION 10.11.1. Assignments. Any Lender,
(a) with the written consents of the Borrower and
Scotiabank (so long as Scotiabank is a Lender) (which
consents shall not be unreasonably delayed or withheld and
which consent, in the case of the Borrower, shall be deemed
to have been given in the absence of a written notice
delivered by the Borrower to the Administrative Agent, on
or before the fifth Business Day after receipt by the
Borrower of such Lender's request for consent, stating, in
reasonable detail, the reasons why the Borrower proposes to
withhold such consent (provided, that the failure to
deliver such consent shall not be a "Default" for purposes
of satisfying the conditions to Credit Extensions set forth
in clause (d) of Section 5.2.1)) may at any time assign and
delegate to one or more commercial banks or other financial
institutions;
(b) with notice to the Borrower and the
Administrative Agent, but without the consent of any
Person, may (i) assign and delegate to any other Lender,
and (ii) assign and/or delegate to any of its Affiliates or
Subsidiaries; and
(c) with notice to the Administrative Agent, but
without the consent of any Person, may pledge its Loans
(and related rights thereto) to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal
Reserve Bank;
(each Person described in the foregoing clauses as being the
Person to whom such assignment and delegation is to be made,
being hereinafter referred to as an "Assignee Lender"), all or
any fraction of such Lender's total Loans and Commitment (which
assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans and
Commitment) in a minimum aggregate amount, when taken together
with other assignments being made to such Assignee Lender under
the Dollar Supply Agreement and Short-Term Dollar Supply
Agreement (as referred to in the definition of the Consignment
Facilities) and under the Long Term Agreement, of $10,000,000 in
the case of an assignment described in clause (a) (such amount to
be reduced pro rata by any permanent reductions in the amount of
the Commitment), or if less, all of such Lender's Loans and
Commitment; provided, however, that any such Lender will (i)
except in connection with a pledge of Loans pursuant to clause
(c) above, contemporaneously sell a pro rata portion of its (A)
Advances and Advance Commitment (as such terms are defined in the
Short-Term Dollar Supply Agreement and Dollar Supply Agreement
referred to in the definition of Consignment Facilities) and (B)
its Loans and Commitment (as such terms are defined in the
Revolving Credit Agreement), in each case to the same Assignee
Lender pursuant to the terms of such agreement and provided
further that any such Assignee Lender will comply, if applicable,
with the provisions contained in the last sentence of Section 4.6
and further, provided, however, that, the Borrower and the
Administrative Agent shall be entitled to continue to deal solely
and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee Lender until
(d) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Lender, shall
have been given to the Borrower and the Administrative
Agent by such Lender and such Assignee Lender;
(e) such Assignee Lender shall have executed and
delivered to the Borrower and the Administrative Agent a
Lender Assignment Agreement, accepted by the Administrative
Agent; and
(f) the processing fees described below shall have
been paid.
From and after the date that the Administrative Agent accepts
such Lender Assignment Agreement, (x) the Assignee Lender
thereunder shall be deemed automatically to have become a party
hereto and to the extent that rights and obligations hereunder
have been assigned and delegated to such Assignee Lender in
connection with such Lender Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and under the other
Loan Documents, and (y) the assignor Lender, to the extent that
rights and obligations hereunder have been assigned and delegated
by it in connection with such Lender Assignment Agreement, shall
be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of
notice that the Administrative Agent has received an executed
Lender Assignment Agreement, the Borrower shall execute and
deliver to the Administrative Agent (for delivery to the relevant
Assignee Lender) a new Note evidencing such Assignee Lender's
assigned Loans and Commitment and, if the assignor Lender has
retained Loans and a Commitment hereunder, a replacement Note in
the principal amount of the Loans and Commitment retained by the
assignor Lender hereunder (such Note to be in exchange for, but
not in payment of, that Note then held by such assignor Lender).
Each such Note shall be dated the date of the predecessor Note.
The assignor Lender shall mark the predecessor Note "exchanged"
and deliver it to the Borrower. Accrued interest on that part of
the predecessor Note evidenced by the new Note, and accrued fees,
shall be paid as provided in the Lender Assignment Agreement.
Accrued interest on that part of the predecessor Note evidenced
by the replacement Note shall be paid to the assignor Lender.
Accrued interest and accrued fees shall be paid at the same time
or times provided in the predecessor Note and in this Agreement.
Such assignor Lender or such Assignee Lender must also pay
(without duplication of any processing fees payable pursuant to
Section 10.11.1 of the Revolving Credit Agreement, Section 8.11.1
of the Dollar Supply Agreement and Section 8.11.1 of the Short-
Term Dollar Supply Agreement (as referred to in the definition of
Consignment Facilities)) a processing fee to the Administrative
Agent upon delivery of any Lender Assignment Agreement in the
amount of $2,500 (provided, however, that such processing fee
shall not be required to be paid by a Lender in the case of
(i) an assignment and/or delegation of such Lender's Loans and
Commitments to an Affiliate or Subsidiary of such Lender, or
(ii) to a Federal Reserve Bank pursuant to clause (c) of this
Section. Any attempted assignment and delegation not made in
accordance with this Section 10.11.1 shall be null and void.
SECTION 10.11.2. Participations. Any Lender may at any
time sell to one or more commercial banks or other Persons (each
of such commercial banks and other Persons being herein called a
"Participant") participating interests in any of the Loans, its
Commitment, or other interests of such Lender hereunder;
provided, however, that
(a) no participation contemplated in this
Section 10.11.2 shall relieve such Lender from its
Commitment or its other obligations hereunder or under any
other Loan Document;
(b) such Lender shall remain solely responsible for
the performance of its Commitment and such other
obligations;
(c) the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under
this Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an
Affiliate of such Lender, or is itself a Lender, shall be
entitled to require such Lender to take or refrain from
taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any
Participant that such Lender will not, without such
Participant's consent, take any actions of the type
described in clause (b) or (c) of Section 10.1; and
(e) the Borrower shall not be required to pay any
amount hereunder that is greater than the amount which it
would have been required to pay had no participating
interest been sold.
The Borrower acknowledges and agrees that each Participant, for
purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4,
shall be considered a Lender.
SECTION 10.12. Other Transactions. Nothing contained
herein shall preclude any Agent or any other Lender from engaging
in any transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of
its Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION 10.13. Forum Selection and Consent to
Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF EACH AGENT, THE LENDERS
OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN
THE COURTS OF THE CITY AND STATE OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY, FOR ITSELF AND ITS
PROPERTY, SUBMITS TO THE EXTENT PERMITTED BY APPLICABLE LAW TO
THE JURISDICTION OF THE COURTS OF THE CITY AND STATE OF NEW YORK
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING
OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES
SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
SECTION 10.14. Waiver of Jury Trial. EACH AGENT, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF SUCH AGENT, THE LENDERS
OR THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT
IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
EACH AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
HANDY & HARMAN
By: /s/ Stephen B. Mudd
Name: Stephen B. Mudd
Title: Vice President and Treasurer
Address: 250 Park Avenue
New York, New York 10177
Facsimile No.: 212-309-0682
Attention: Mr. Stephen B. Mudd
Vice President and Treasurer
THE BANK OF NOVA SCOTIA,
in its capacity as
Administrative Agent, Co-Agent and
the Issuer
By: /s/ Stephen Lockhart
Name: Stephen Lockhart
Title: Senior Manager
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5090
Attention: Mr. Brian Allen
PERCENTAGE
8.641975300% THE BANK OF NOVA SCOTIA, in its capacity
as a Lender
By: /s/ Stephen Lockhart
Name: Stephen Lockhart
Title: Senior Manager
Domestic
Office: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5091
Attention: Mr. Brian Allen
LIBOR
Office: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5091
Attention: Mr. Brian Allen
PERCENTAGE
8.641975300% THE BANK OF NEW YORK, in its capacity as
a Co-Agent and a Lender
By: /s/ William A. Kerr
Name: William A. Kerr
Title: Vice President
Domestic
Office: One Wall Street
New York, New York 10286
Facsimile No.: 212-635-1480
Attention: Wendy Forrest
LIBOR
Office: One Wall Street
New York, New York 10286
Facsimile No.: 212-635-1480
Attention: Wendy Forrest
PERCENTAGE
8.641975300% CHEMICAL BANK, in its capacity as
a Co-Agent and a Lender
By: /s/ Theodore L. Parker
Name: Theodore L. Parker
Title: Vice President
Domestic
Office: 270 Park Avenue
New York, NY 10017
Facsimile No.: 212-270-4016
Attention: Renee Pierre-Louis
LIBOR
Office: 270 Park Avenue
New York, NY 10017
Facsimile No.: 212-270-4016
Attention: Renee Pierre-Louis
PERCENTAGE
7.514761100% FLEET BANK, N.A.
By: /s/ John V. Raleigh
Name: John V. Raleigh
Title: Vice President
Domestic
Office: One Stamford Plaza
263 Tresser Blvd.
Stamford, Connecticut 06901
Facsimile No.: 203-351-1511
Attention: Virginia Rockwood
LIBOR
Office: One Stamford Plaza
263 Tresser Blvd.
Stamford, Connecticut 06901
Facsimile No.: 203-351-1511
Attention: Virginia Rockwood
PERCENTAGE
7.514761100% NBD BANK, N.A.
By: /s/ Anna R. Hoffman
Name: Anna R. Hoffman
Title: Vice President
Domestic
Office: 611 Woodward Avenue
Detroit, Michigan 48302
Facsimile No.: 313-225-1586
Attention: Cheryl Brosovic/Ann Hoffman
LIBOR
Office: 611 Woodward Avenue
Detroit, Michigan 48302
Facsimile No.: 313-225-1586
Attention: Cheryl Brosovic/Ann Hoffman
PERCENTAGE
6.441223800% THE BANK OF TOKYO TRUST COMPANY
By: /s/ Jeffrey Miller
Name: Jeffrey Miller
Title:
Domestic
Office: The Bank of Tokyo
Trust Company
Telephone No.: 212-766-5461
Facsimile No.: 212-732-1678
Attention: Rolando Uy
LIBOR
Office: The Bank of Tokyo
Trust Company
Telephone No.: 212-766-5461
Facsimile No.: 212-732-1678
Attention: Rolando Uy
PERCENTAGE
6.441223800% LTCB TRUST COMPANY
By: /s/ Rene LeBlanc
Name: Rene LeBlanc
Title: Senior Vice President
Domestic
Office: 165 Broadway
New York, NY 10006
Facsimile No.: (212) 608-3081
Attention: Winston Brown
LIBOR
Office: 165 Broadway
New York, NY 10006
Facsimile No.: (212) 608-3081
Attention: Winston Brown
PERCENTAGE
6.441223800% SHAWMUT BANK, N.A.
By: /s/ Kerry Day
Name: Kerry Day
Title: Assistant Vice President
Domestic
Office: One Federal St. OF-0324
Boston, Massachusetts 02211
Facsimile No.: 617-292-2566
Attention: Kerry Day
LIBOR
Office: Shawmut Bank, N.A.
One Federal St. OF-0324
Boston, Massachusetts 02211
Facsimile No.: 617-292-2566
Attention: Kerry Day
PERCENTAGE
4.294149200% CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Mark A. Campellone
Name: Mark A. Campellone
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ Mark A. Campellone
Name: Mark A. Campellone
Title: Authorized Signature
In both cases:
Domestic
Office: 1301 Avenue of the Americas
New York, New York 10019
Facsimile No.: 212-459-3179
For Administrative
Matters:
Attention: Kevin McCarthy
LIBOR
Office: 1301 Avenue of the Americas
New York, New York 10019
Facsimile No.: 212-459-3179
For Administrative
Matters:
Attention: Kevin McCarthy
For Credit Matters:
Attention: Andrea Griffis
PERCENTAGE
4.294149200% THE DAIWA BANK, LIMITED
By: /s/ J.H. Broadley
Name: J.H. Broadley
Title: Vice President
By: /s/ B.W. Henry
Name: B.W. Henry
Title: Vice President and Manager
Domestic
Office: The Daiwa Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4500
Chicago, Illinois 60606
LIBOR
Office: The Daiwa Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4500
Chicago, Illinois 60606
Address for
Notices: The Daiwa Bank, Limited
450 Lexinton Avenue
Suite 1700
New York, New York 10017
Facsimile No.: 212-818-0866
Attention: Catherine Tiano, Credit
Administration Assistant
PERCENTAGE
4.294149200% DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By: /s/ Jeffrey N. Wieser
Name: Jeffrey N. Wieser
Title: Director
By: /s/ Jean M. Hannigan
Name: Jean M. Hannigan
Title: Assistant Vice President
Domestic
Office: Deutsche Bank AG,
New York and/or
Cayman Islands Branches
31 West 52nd Street
New York, New York 10019
Facsimile No.: 212-474-8212
Attention: Jeffrey N. Wieser/
Gregory M. Hill
LIBOR
Office: Deutsche Bank AG,
Cayman Islands Branch
31 West 52nd Street
New York, New York 10019
Facsimile No.: 212-474-8212
Attention: Jeffrey N. Wieser/
Gregory M. Hill
PERCENTAGE
4.294149200% THE FUJI BANK LTD.
By: /s/ Gina M. Kearns
Name: Gina M. Kearns
Title: Vice President and Manager
Domestic
Office: The Fuji Bank, Limited,
New York Branch
Two World Trade Center,
79th Floor
New York, New York 10048
Facsimile No.: 212-912-0516
Attention: Yoshihiko Shiotsugu
LIBOR
Office: The Fuji Bank, Limited,
New York Branch
Two World Trade Center,
79th Floor
New York, New York 10048
Facsimile No.: 212-912-0516
Attention: Yoshihiko Shiotsugu
PERCENTAGE
4.294149200% NATIONAL WESTMINSTER BANK USA
By: /s/ Phillip H. Sorace
Name: Phillip H. Sorace
Title: Vice President
Domestic
Office: 592 Fifth Avenue
New York, New York 10036
Facsimile No.: 212-602-2890
Attention: Patty Singh or Bob Gaiti
LIBOR
Office: 592 Fifth Avenue
New York, New York 10036
Facsimile No.: 212-602-2890
Attention: Patty Singh or Bob Gaiti
PERCENTAGE
3.220611900% ABN AMRO BANK N.V. NEW YORK BRANCH
By: /s/ Richard H. West
Name: Richard H. West
Title: Group Vice President
By: /s/ Rodolfo Barros
Name: Rodolfo Barros
Title: Vice President
Domestic
Office: 500 Park Avenue
New York, New York 10022
Facsimile No.: 212-688-5815
Attention: Ed Tice/Rodolfo Barros
LIBOR
Office: 500 Park Avenue
New York, New York 10022
Facsimile No.: 212-688-5815
Attention: Ed Tice/Rodolfo Barros
PERCENTAGE
3.220611900% BANQUE PARIBAS
By: /s/ Richard G. Burrows
Name: Richard G. Burrows
Title: Vice President
By: /s/ Ann Pifer
Name: Ann Pifer
Title: Assistant Vice President
Domestic
Office: 787 Seventh Avenue
New York, NY 10019
Facsimile No.: 212-841-2217
For Administrative
Matters:
Attention: Loan Servicing Dept.
Facsimile No.: 212-841-2333
For Credit Matters:
Attention: Large Corp. Group
LIBOR
Office: Banque Paribas
787 Seventh Avenue
New York, NY 10019
Facsimile No.: 212-841-2217
For Administrative
Matters:
Attention: Loan Servicing Dept.
Facsimile No.: 212-841-2333
For Credit Matters:
Attention: Large Corp. Group
PERCENTAGE
3.220611900% GIROCREDIT BANK AG DER SPARKESSEN
GRAND CAYMAN ISLAND BRANCH
By: /s/ D. Stephens / /s/ John Redding
Name: Dhuane G. Stephens/John P. Redding
Title: Vice President / Vice President
Domestic
Office: 65 East 55th Street
New York, New York 10022
Facsimile No: 212-644-0644
Attention: Dhuane Stephens
LIBOR
Office: 65 East 55th Street
New York, New York 10022
Facsimile No.: 212-421-2719
Attention: Orlando Diaz
PERCENTAGE
2.147074700% COMERICA BANK
By: /s/ Julie Burke Smith
Name: Julie Burke Smith
Title: Vice President
Domestic
Office: Comerica Bank
500 Woodward Avenue MC 3280
Detroit, Michigan 48226
Facsimile No.: 313-222-3330
Attention: Sandy Truman
LIBOR
Office: Comerica Bank
500 Woodward Avenue MC 3280
Detroit, Michigan 48226
Facsimile No.: 313-222-3330
Attention: Sandy Truman
PERCENTAGE
2.147074700% IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ J. Christopher Mangan
Name: J. Christopher Mangan
Title: Vice President
Domestic
Office: One State Street
New York, New York 10004
Facsimile No.: 212-858-2768
Attention: Mr. Jamie M. Weston
LIBOR
Office: One State Street
New York, New York 10004
Facsimile No.: 212-858-2768
Attention: Mr. Jamie M. Weston
PERCENTAGE
2.147074700% THE MITSUBISHI BANK, LIMITED -
NEW YORK BRANCH
By: /s/ Paula Mueller
Name: Paula Mueller
Title: Vice President
Domestic
Office: 225 Liberty Street
Two World Financial Center
New York, New York 10281
Facsimile No.: 212-667-3562
Attention: Ms. Paula Mueller,
Vice President
LIBOR
Office: The Mitsubishi Bank, Limited
New York Branch
225 Liberty Street
Two World Financial Center
New York, New York 10281
Facsimile No.: 212-667-3562
Attention: Ms. Paula Mueller,
Vice President
PERCENTAGE
2.147074700% YASUDA TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: /s/ Nicholas Pullen
Name: Nicholas Pullen
Title: Vice President
Domestic
Office: 666 Fifth Avenue, Suite 801
New York, New York 10103
Facsimile No.: 212-373-5797
Attention: Mr. Richard Ortiz
LIBOR
Office: 666 Fifth Avenue, Suite 801
New York, New York 10103
Facsimile No.: 212-373-5797
Attention: Mr. Richard Ortiz
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 1. Existing Letters of Credit.
Stated Amount Beneficiary
ITEM 5.1.3 Indebtedness to be Paid or Replaced.
Creditor Outstanding Principal Amount
ITEM 6.7 Litigation.
Description of Proceeding Action or Claim Sought
ITEM 6.8 Existing Subsidiaries.
State of Ownership Business
Name Incorporation % Description
ITEM 6.11 Employee Benefit Plans.
ITEM 6.12 Environmental Matters.
ITEM 7.2.3(b) Ongoing Indebtedness.
Creditor Outstanding Principal Amount
ITEM 7.2.5.(a) Ongoing Investments.