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Exhibit 10
CREDIT AGREEMENT
DATED AS OF AUGUST 30, 1998
AMONG
GENLYTE THOMAS GROUP LLC
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS AGENT AND
ISSUING BANK
AND
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
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ARRANGED BY
BANCAMERICA ROBERTSON STEPHENS
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I: DEFINITIONS..........................................................................................1
1.01 CERTAIN DEFINED TERMS.................................................................................1
1.02 OTHER INTERPRETIVE PROVISIONS........................................................................16
1.03 ACCOUNTING PRINCIPLES................................................................................17
ARTICLE II: THE CREDITS........................................................................................18
2.01 AMOUNTS AND TERMS OF COMMITMENTS.....................................................................18
2.02 LOAN ACCOUNTS........................................................................................18
2.03 PROCEDURE FOR BORROWING..............................................................................19
2.04 CONVERSION AND CONTINUATION ELECTIONS................................................................20
2.05 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS....................................................21
2.06 OPTIONAL PREPAYMENTS.................................................................................22
2.07 MANDATORY COLLATERALIZATION OF L/C OBLIGATIONS; MANDATORY PREPAYMENTS................................22
2.08 REPAYMENT............................................................................................22
2.09 INTEREST.............................................................................................22
2.10 FEES.................................................................................................23
(a) Arrangement, Agency Fees.............................................................................23
(b) Commitment Fees......................................................................................23
2.11 COMPUTATION OF FEES AND INTEREST.....................................................................24
2.12 PAYMENTS.............................................................................................24
2.13 PAYMENTS BY THE BANKS TO THE AGENT...................................................................24
2.14 SHARING OF PAYMENTS, ETC.............................................................................25
ARTICLE III: THE LETTERS OF CREDIT.............................................................................26
3.01 THE LETTER OF CREDIT SUBFACILITY.....................................................................26
3.02 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT.................................................27
3.03 EXISTING BOFA LETTERS OF CREDIT; RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS....................29
3.04 REPAYMENT OF PARTICIPATIONS..........................................................................31
3.05 ROLE OF THE ISSUING BANK.............................................................................31
3.06 OBLIGATIONS ABSOLUTE.................................................................................32
3.07 CASH COLLATERAL PLEDGE...............................................................................33
3.08 LETTER OF CREDIT FEES................................................................................33
3.09 UNIFORM CUSTOMS AND PRACTICE.........................................................................34
ARTICLE IV: TAXES, YIELD PROTECTION AND ILLEGALITY.............................................................35
4.01 TAXES................................................................................................35
4.02 ILLEGALITY...........................................................................................36
4.03 INCREASED COSTS AND REDUCTION OF RETURN..............................................................36
4.04 FUNDING LOSSES.......................................................................................37
4.05 INABILITY TO DETERMINE RATES.........................................................................38
4.06 RESERVES ON OFFSHORE RATE LOANS......................................................................38
4.07 CERTIFICATES OF BANKS................................................................................38
4.08 SUBSTITUTION OF BANKS................................................................................38
4.09 SURVIVAL.............................................................................................39
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SECTION PAGE
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ARTICLE V: CONDITIONS PRECEDENT................................................................................40
5.01 CONDITIONS OF INITIAL CREDIT EXTENSIONS..............................................................40
(a) Credit Agreement.....................................................................................40
(b) Evidence of Organization and Organizational Action...................................................40
(c) Legal Opinion........................................................................................40
(d) Payment of Fees......................................................................................40
(e) Certificate..........................................................................................41
(f) Payment under Existing Agreement.....................................................................41
(g) Formation Conditions.................................................................................41
(h) Financial Statements.................................................................................41
(i) Other Documents......................................................................................41
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS..................................................................42
(a) Notice, Application..................................................................................42
(b) Continuation of Representations and Warranties.......................................................42
(c) No Existing Default..................................................................................42
ARTICLE VI: REPRESENTATIONS AND WARRANTIES.....................................................................43
6.01 LLC EXISTENCE AND POWER..............................................................................43
6.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION............................................................43
6.03 GOVERNMENTAL AUTHORIZATION...........................................................................43
6.04 BINDING EFFECT.......................................................................................44
6.05 LITIGATION...........................................................................................44
6.06 NO DEFAULT...........................................................................................44
6.07 ERISA COMPLIANCE.....................................................................................44
6.08 USE OF PROCEEDS; MARGIN REGULATIONS..................................................................45
6.09 TITLE TO PROPERTIES..................................................................................45
6.10 TAXES................................................................................................45
6.11 FINANCIAL CONDITION..................................................................................45
6.12 ENVIRONMENTAL MATTERS................................................................................46
6.13 REGULATED ENTITIES...................................................................................46
6.14 NO BURDENSOME RESTRICTIONS...........................................................................46
6.15 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC....................................................46
6.16 SUBSIDIARIES.........................................................................................46
6.17 INSURANCE............................................................................................46
6.18 FULL DISCLOSURE......................................................................................47
6.19 YEAR 2000............................................................................................47
6.20 SECURITY INTERESTS...................................................................................47
ARTICLE VII: AFFIRMATIVE COVENANTS.............................................................................48
7.01 FINANCIAL STATEMENTS.................................................................................48
7.02 CERTIFICATES; OTHER INFORMATION......................................................................48
7.03 NOTICES..............................................................................................49
7.04 PRESERVATION OF EXISTENCE, ETC.......................................................................50
7.05 MAINTENANCE OF PROPERTY..............................................................................50
7.06 INSURANCE............................................................................................50
7.07 PAYMENT OF OBLIGATIONS...............................................................................50
7.08 COMPLIANCE WITH LAWS.................................................................................51
7.09 COMPLIANCE WITH ERISA................................................................................51
7.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS.........................................................51
7.11 ENVIRONMENTAL LAWS...................................................................................51
7.12 USE OF PROCEEDS......................................................................................51
7.13 FURTHER ASSURANCES...................................................................................51
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SECTION PAGE
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ARTICLE VIII: NEGATIVE COVENANTS...............................................................................53
8.01 LIMITATION ON LIENS..................................................................................53
8.02 DISPOSITION OF ASSETS................................................................................54
8.03 CONSOLIDATIONS AND MERGERS...........................................................................55
8.04 LOANS AND INVESTMENTS................................................................................55
8.05 LIMITATION ON INDEBTEDNESS...........................................................................56
8.06 TRANSACTIONS WITH AFFILIATES.........................................................................56
8.07 USE OF PROCEEDS......................................................................................56
8.08 CONTINGENT OBLIGATIONS...............................................................................57
8.09 LEASE OBLIGATIONS....................................................................................57
8.10 RESTRICTED PAYMENTS..................................................................................58
8.11 CHANGE IN BUSINESS...................................................................................58
8.12 ACCOUNTING CHANGES...................................................................................58
8.13 FINANCIAL COVENANTS..................................................................................58
8.14 LIMITATION ON OPTIONAL PAYMENTS OF SUBORDINATED DEBT AND MODIFICATIONS
OF RELATED DEBT......................................................................................59
ARTICLE IX: EVENTS OF DEFAULT..................................................................................60
9.01 EVENT OF DEFAULT.....................................................................................60
(a) Non-Payment..........................................................................................60
(b) Representation or Warranty...........................................................................60
(c) Specific Defaults....................................................................................60
(d) Other Defaults.......................................................................................60
(e) Cross-Default........................................................................................60
(f) Insolvency; Voluntary Proceedings....................................................................61
(g) Involuntary Proceedings..............................................................................61
(h) ERISA................................................................................................61
(i) Monetary Judgments...................................................................................61
(j) Non-Monetary Judgments...............................................................................62
(k) Change of Control....................................................................................62
(l) Collateral...........................................................................................62
(m) Related Agreements...................................................................................62
9.02 REMEDIES.............................................................................................62
9.03 RIGHTS NOT EXCLUSIVE.................................................................................63
ARTICLE X: THE AGENT...........................................................................................64
10.01 APPOINTMENT AND AUTHORIZATION; "AGENT"...............................................................64
10.02 DELEGATION OF DUTIES.................................................................................64
10.03 LIABILITY OF AGENT...................................................................................64
10.04 RELIANCE BY AGENT....................................................................................65
10.05 NOTICE OF DEFAULT....................................................................................65
10.06 CREDIT DECISION......................................................................................66
10.07 INDEMNIFICATION OF AGENT.............................................................................66
10.08 AGENT IN INDIVIDUAL CAPACITY.........................................................................66
10.09 SUCCESSOR AGENT......................................................................................67
10.10 WITHHOLDING TAX......................................................................................67
10.11 CO-AGENTS; LEAD MANAGERS.............................................................................69
10.12 AGENCY PROVISIONS....................................................................................69
ARTICLE XI: MISCELLANEOUS......................................................................................70
11.01 AMENDMENTS AND WAIVERS...............................................................................70
11.02 NOTICES..............................................................................................71
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SECTION PAGE
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11.03 NO WAIVER; CUMULATIVE REMEDIES.......................................................................71
11.04 COSTS AND EXPENSES...................................................................................72
11.05 COMPANY INDEMNIFICATION..............................................................................72
11.06 PAYMENTS SET ASIDE...................................................................................72
11.07 SUCCESSORS AND ASSIGNS...............................................................................73
11.08 ASSIGNMENTS, PARTICIPATIONS, ETC.....................................................................73
11.09 CONFIDENTIALITY......................................................................................74
11.10 SET-OFF..............................................................................................75
11.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC......................................................75
11.12 COUNTERPARTS.........................................................................................75
11.13 SEVERABILITY.........................................................................................75
11.14 NO THIRD PARTIES BENEFITED...........................................................................76
11.15 GOVERNING LAW AND JURISDICTION.......................................................................76
11.16 WAIVER OF JURY TRIAL.................................................................................76
11.17 ENTIRE AGREEMENT.....................................................................................77
SCHEDULES
Schedule 2.01 Commitments
Schedule 3.03 Existing BofA Letters of Credit
Schedule 6.07 ERISA
Schedule 6.12 Environmental Matters
Schedule 6.15 Intellectual Property Litigation Resulting in a Material Adverse Effect
Schedule 6.16 Subsidiaries and Minority Interests
Schedule 6.17 Insurance Matters
Schedule 8.01 Permitted Liens
Schedule 8.05 Permitted Indebtedness
Schedule 8.08 Contingent Obligations
Schedule 11.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Company's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Pricing Schedule
Exhibit G Increase of Commitments
Exhibit H Supplement
Exhibit I Pledge Agreement
Exhibit J Security Agreement
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of August 30, 1998, among
GENLYTE THOMAS GROUP LLC, a Delaware limited liability company (the "Company"),
the several financial institutions from time to time party to this Agreement
(collectively, the "Banks"; individually, a "Bank"), and Bank of America
National Trust and Savings Association, as Issuing Bank and as Agent for the
Banks.
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit facility with a letter of credit subfacility upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
"ACQUISITION" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is a
Subsidiary); PROVIDED THAT the Company or the Subsidiary is the
surviving entity.
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, membership interests, by contract, or
otherwise.
"AGENT" means BofA in its capacity as agent for the Banks
hereunder, and any successor agent arising under SECTION 10.09.
"AGENT'S PAYMENT OFFICE" means the address for payments set
forth on SCHEDULE 11.02 or such other address as the Agent may from
time to time specify.
"AGENT-RELATED PERSONS" means BofA and any successor agent
arising under SECTION 10.09 and any successor letter of credit issuing
bank hereunder, together with their respective Affiliates (including,
in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"AGREEMENT" means this Credit Agreement.
"ARRANGER" means BancAmerica Robertson Stephens, a Delaware
corporation.
"ASSIGNEE" has the meaning specified in SUBSECTION 11.08(A).
"ATTORNEY COSTS" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated
cost of internal legal services and all disbursements of internal
counsel.
"BANK" has the meaning specified in the introductory clause
hereto. References to the "Banks" shall include BofA, including in its
capacity as Issuing Bank; for purposes of clarification only, to the
extent that BofA may have any rights or obligations in addition to
those of the Banks due to its status as Issuing Bank, its status as
such will be specifically referenced.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. ss.101, ET SEQ.).
"BASE RATE" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by BofA
in San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BofA based upon various factors including BofA's
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate.)
Any change in the reference rate announced by BofA shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"BASE RATE LOAN" means a Revolving Loan, or an L/C Advance,
that bears interest based on the Base Rate.
"BOFA" means Bank of America National Trust and Savings
Association, a national banking association.
"BORROWING" means a borrowing hereunder consisting of
Revolving Loans of the same Type made to the Company on the same day by
the Banks under ARTICLE II, and, other than in the case of Base Rate
Loans, having the same Interest Period.
"BORROWING DATE" means any date on which a Borrowing occurs
under SECTION 2.03.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco
are authorized or required by
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law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are carried on
in the applicable offshore dollar interbank market.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"CAPITALIZATION AGREEMENTS" means the capitalization agreement
between GT Lighting, LLC and The Genlyte Group Incorporated dated as of
April 28, 1998 and the capitalization agreement among GT Lighting, LLC
and Thomas Industries Inc., Tupelo Holdings Inc., Thomas Industries
Holdings Inc., Gardco Mfg, Inc., Capri Lighting, Inc., Thomas Imports,
Inc., and TI Industries Corporation.
"CASH COLLATERALIZE" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuing Bank
and the Banks, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance
reasonably satisfactory to the Agent and the Issuing Bank (which
documents are hereby consented to by the Banks).
"CHANGE OF CONTROL" means any change in or transfer of the
"Percentage Interest" (as defined in the Company Operating Agreement)
which results in the Members existing on the Closing Date owning
directly or through their wholly-owned subsidiaries less than 66.7% of
the "Percentage Interests" of the Company in the aggregate.
"CLOSING DATE" means the date on which all conditions
precedent set forth in SECTION 5.01 are satisfied or waived by all
Banks (or, in the case of SUBSECTION 5.01(E), waived by the Person
entitled to receive such payment).
"CODE" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"COLLATERAL" means all of the collateral covered by the
Collateral Documents.
"COLLATERAL DOCUMENTS" means collectively the Security
Agreement, the Pledge Agreement, the Deeds of Trust and any other
security agreement, pledge agreement, deed of trust, mortgage or other
collateral security agreement herewith executed and delivered by the
Company to secure the Obligations.
"COMMITMENT", as to each Bank, has the meaning specified in
Section 2.01.
"COMMITMENT FEE RATE" means the percentage set forth in the
Pricing Schedule with respect to the Commitment Fee Rate.
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"COMPANY CERTIFICATE OF FORMATION" means the Certificate of
Formation of the Company, dated April 24, 1998, as such Certificate of
Formation may be amended or otherwise modified from time to time.
"COMPANY OPERATING AGREEMENT" means the Limited Liability
Company Agreement of the Company, dated April 28, 1998, among the
Company and its Members, as the same may be amended, supplemented or
otherwise modified from time to time.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT C.
"CONTINGENT OBLIGATION" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person (i) to purchase, repurchase or otherwise
acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such
primary obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise for the primary purpose of
assuring or holding harmless the holder of any such primary obligation
against loss in respect thereof (each, a "GUARANTY OBLIGATION"); (b)
with respect to any Surety Instrument issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement
of drawings or payments; (c) to purchase any materials, supplies or
other property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation requires
that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such
materials, supplies or other property is ever made or tendered, or such
services are ever performed or tendered, or (d) in respect of any Swap
Contract. The amount of any Contingent Obligation shall, in the case of
Guaranty Obligations, be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such Guaranty
Obligation is made (or any lower stated cap on such Person's liability
in respect thereof) or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof and, in the case of
Contingent Obligations in respect of Swap Contracts, shall be equal to
the Swap Termination Value.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by
which it or any of its property is bound.
"CONVERSION/CONTINUATION DATE" means any date on which, under
Section 2.04, the Company (a) converts Loans of one Type to another
Type, or (b) continues as Loans of
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the same Type, but with a new Interest Period, Loans having Interest
Periods expiring on such date.
"COVERAGE RATIO" means, for any fiscal quarter, the ratio of
EBIT to Interest Expense.
"CREDIT EXTENSION" means and includes (a) the making of any
Revolving Loans hereunder, and (b) the Issuance of any Letters of
Credit hereunder (including the Existing BofA Letters of Credit).
"DEFAULT" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"DOLLARS", "DOLLARS" and "$" each mean lawful money of the
United States.
"EBIT" means, for any period, the sum of (a) Net Income; (b)
all Interest Expense to the extent used in the determination of the Net
Income; and (c) all taxes accrued for such period on or measured by
income to the extent included in the determination of such Net Income;
PROVIDED, HOWEVER, that Net Income shall be computed for the purposes
of this definition without giving effect to (i) extraordinary losses or
extraordinary gains for such period or (ii) to separately reported
non-recurring restructuring gains or losses incurred within the 24
month period after the date of this Agreement in an aggregate amount
(in the case of such restructuring charges) not to exceed $11,000,000.
"EBITDA" means, for any period, the sum of (a) Net Income; (b)
all Interest Expense and expenses for depreciation and the amortization
of intangibles of any kind for such period to the extent used in the
determination of such Net Income; and (c) all taxes accrued for such
period on or measured by income to the extent included in the
determination of such Net Income; PROVIDED, HOWEVER, that Net Income
shall be computed for the purposes of this definition without giving
effect to (i) extraordinary losses or extraordinary gains for such
period or (ii) to separately reported non-recurring restructuring gains
or losses incurred within the 24 month period after the date of this
Agreement in an aggregate amount (in the case of such restructuring
charges) not to exceed $11,000,000.
"EFFECTIVE AMOUNT" means (i) with respect to any Revolving
Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any Borrowings and prepayments or repayments of
Revolving Loans occurring on such date; and (ii) with respect to any
outstanding L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any Issuances of
Letters of Credit occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any
Letters of Credit or any reductions in the maximum amount available for
drawing under Letters of Credit taking effect on such date.
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"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $500,000,000; and/or (b) a
Person that is primarily engaged in the business of commercial banking
and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of a Person
of which a Bank is a Subsidiary, or (iii) a Person of which a Bank is a
Subsidiary.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for
release or injury to the environment.
"ENVIRONMENTAL LAWS" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of
1974, and regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan; or
(f) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon
the Company or any ERISA Affiliate.
"EVENT OF DEFAULT" means any of the events or circumstances,
including the thresholds and cure periods specified in SECTION 9.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
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"EXISTING BOFA LETTERS OF CREDIT" means the letters of credit
described in SCHEDULE 3.03.
"EXISTING CREDIT AGREEMENT" means the Second Amended and
Restated Credit Agreement dated as of April 30, 1997 among The Genlyte
Group Incorporated and the banks named therein and The Bank of New York
and Sun Trust Bank, Atlanta, as Co-Agents and Bank of America Illinois,
as a Bank and Letter of Credit Issuer, and Bank of America National
Trust and Savings Association as Agent, as amended.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"FEE LETTER" has the meaning specified in SUBSECTION 2.10(A).
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"FURTHER TAXES" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including, without limitation, net income taxes and
franchise taxes), and all liabilities with respect thereto, imposed by
any jurisdiction on account of amounts payable or paid pursuant to
SECTION 4.01.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the
Closing Date.
"GENLYTE" means The Genlyte Group Incorporated.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority)
7
thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock
or capital ownership or otherwise, by any of the foregoing.
"GUARANTY OBLIGATION" has the meaning specified in the
definition of "Contingent Obligation."
"HONOR DATE" has the meaning specified in SUBSECTION 3.03(C).
"INDEBTEDNESS" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into in the ordinary course
of business on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights
and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
obligations with respect to capital leases; (g) all indebtedness
referred to in clauses (a) through (f) above secured by (or for which
the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including
accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness; PROVIDED THAT the amount of such indebtedness shall equal
the lesser of (i) the amount secured, and (ii) the fair market value of
the collateral security; and (h) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (g) above.
"INDEMNIFIED LIABILITIES" has the meaning specified in SECTION
11.05.
"INDEMNIFIED PERSON" has the meaning specified in SECTION
11.05.
"INDEPENDENT AUDITOR" has the meaning specified in SUBSECTION
7.01(A).
"INSOLVENCY PROCEEDING" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors,
or other, similar arrangement in respect of its creditors generally or
any substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
8
"INTEREST EXPENSE" shall mean, as of any date, the aggregate
amount of interest expense of the Company and its Subsidiaries for the
immediately preceding twelve months as determined on a consolidated
basis in accordance with GAAP.
"INTEREST PAYMENT DATE" means, as to any Loan other than a
Base Rate Loan, the last day of each Interest Period applicable to such
Loan and each date such Loan is converted into another Type of Loan
and, as to any Base Rate Loan, the last Business Day of each calendar
quarter; PROVIDED, HOWEVER, that if any Interest Period for an Offshore
Rate Loan is greater than three months, the date that is three months
after the beginning of such Interest Period each three month period
thereafter.
"INTEREST PERIOD" means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two,
three or six months thereafter (and any other period that is 12 months
or less and is consented to by all the Banks in writing in the given
instance) as selected by the Company in its Notice of Borrowing or
Notice of Conversion/Continuation;
PROVIDED THAT:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Loan, the result of such extension would be
to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period pertaining to an Offshore
Rate Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Revolving Loan shall
extend beyond the Revolving Credit Termination Date.
"IRB" means the industrial development or pollution control
bonds issued pursuant to Section 103 of the Code and outstanding on the
Closing Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"ISSUANCE DATE" has the meaning specified in SUBSECTION
3.01(A).
"ISSUE" means, with respect to any Letter of Credit, to
incorporate the Existing BofA Letters of Credit into this Agreement, or
to issue or to extend the expiry of,
9
or to renew or increase the amount of, such Letter of Credit; and the
terms "ISSUED," "ISSUING" and "ISSUANCE" have corresponding meanings.
"ISSUING BANK" means BofA in its capacity as issuer of one or
more Letters of Credit hereunder, together with any replacement letter
of credit issuer arising under SUBSECTION 10.01(B) or SECTION 10.09.
"JOINT PROXY STATEMENT" means the joint proxy statement filed
by Genlyte and Thomas with the SEC dated July 23, 1998.
"L/C ADVANCE" means each Bank's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"L/C AMENDMENT APPLICATION" means an application form for
amendment of outstanding standby or commercial documentary letters of
credit as shall at any time be in use at the Issuing Bank, as the
Issuing Bank shall request.
"L/C APPLICATION" means an application form for issuances of
standby or commercial documentary letters of credit as shall at any
time be in use at the Issuing Bank, as the Issuing Bank shall request.
"L/C BORROWING" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Revolving Loans
under SUBSECTION 3.03(C).
"L/C COMMITMENT" means the commitment of the Issuing Bank to
Issue, and the commitment of the Banks severally to participate in,
Letters of Credit (including the Existing BofA Letters of Credit) from
time to time Issued or outstanding under ARTICLE III, in an aggregate
amount not to exceed on any date the amount of $35,000,000, as the same
shall be reduced as a result of a reduction in the L/C Commitment
pursuant to SECTION 2.05; PROVIDED THAT the L/C Commitment is a part of
the combined Commitments, rather than a separate, independent
commitment.
"L/C OBLIGATIONS" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.
"L/C-RELATED DOCUMENTS" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Bank's
standard form documents for letter of credit issuances.
"LENDING OFFICE" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on SCHEDULE
11.02, or such other office or offices as such Bank may from time to
time notify the Company and the Agent.
10
"LETTERS OF CREDIT" means the Existing BofA Letters of Credit
and any letters of credit (whether standby letters of credit or
commercial documentary letters of credit) Issued by the Issuing Bank
pursuant to ARTICLE III.
"LIEN" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing
statement naming the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any comparable law) and
any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating lease
"LOAN" means an extension of credit by a Bank to the Company
under ARTICLE II or ARTICLE III in the form of a Revolving Loan or L/C
Advance.
"LOAN DOCUMENTS" means this Agreement, the Fee Letter, the
L/C-Related Documents, the Collateral Documents and all other documents
delivered by or on behalf of the Company to the Agent or any Bank in
connection herewith.
"MAJORITY BANKS" means at any time Banks then holding at least
51% of the then aggregate unpaid principal amount of the Obligations,
or, if no such principal amount is then outstanding, at least two Banks
then having in at least 51% of the Commitments.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"MASTER TRANSACTION AGREEMENT" means the Master Transaction
Agreement By and Between Thomas and Genlyte dated as of April 28, 1998.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the
Company or the Company and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Company or any Subsidiary to
perform under any Loan Document and to avoid any Event of Default; or
(c) a material adverse effect upon the legality, validity, binding
effect or enforceability against the Company of any Loan Document.
"MATERIAL SUBSIDIARY" means a Subsidiary meeting any of the
following conditions: (i) the assets of such Subsidiary, or the
investments in and advances to such Subsidiary by the Company and its
other Subsidiaries exceed 5% of Members' Equity or (2) the net sales
and services revenues of such Subsidiary for the fiscal year of the
Company most recently
11
ended exceed 5% of the Company's consolidated net sales and service
revenues (excluding those of such Subsidiary) shown on the statement of
consolidated net income for such fiscal year.
"MEMBER" (collectively, "Members") means The Genlyte Group
Incorporated or Thomas Industries Inc.
"MEMBERS' EQUITY" means the difference between the assets and
liabilities as referenced on the Company's consolidated balance sheet.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any
ERISA Affiliate makes, is making, or is obligated to make contributions
or, during the preceding three calendar years, has made, or been
obligated to make, contributions.
"NET INCOME" shall mean, as of any date, the Company's
consolidated net income (or net loss) for the immediately preceding
twelve months determined in accordance with GAAP without giving effect
to taxes for such twelve months and LESS Tax Dividends.
"NET WORTH" shall mean, at any time, all amounts which, in
accordance with GAAP, would be included under Members' Equity on a
consolidated balance sheet of the company and its subsidiaries
(excluding foreign currency translation adjustments).
"NOTICE OF BORROWING" means a notice in substantially the form
of EXHIBIT A.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in
substantially the form of EXHIBIT B.
"OBLIGATIONS" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company to any Bank, the Agent, or any Indemnified Person,
whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter
arising.
"OFFSHORE RATE" means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same Borrowing, the rate
of interest per annum (rounded upward to the next 1/16th of 1%) at
which dollar deposits for such Interest Period and in an amount
approximately equal to the amount of the Offshore Rate Loan during such
Interest Period would be offered by the London office of the Agent to
major banks in the London eurodollar market at or about 11:00 a.m.
(London time) two Business Days prior to the commencement of such
Interest Period.
"OFFSHORE RATE LOAN" means a Loan that bears interest based on
the Offshore Rate.
12
"OFFSHORE RATE MARGIN" means the percentage set forth in the
Pricing Schedule with respect to the Offshore Rate Margin.
"ORGANIZATION DOCUMENTS" means, for any corporation or limited
liability company, the certificate or articles of incorporation, or
certificate of formation, the bylaws, operating agreement, any
certificate of determination or instrument relating to the rights of
preferred shareholders of such corporation, any shareholder rights
agreement, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation or limited liability
company.
"OTHER TAXES" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Documents
(excluding in all events income taxes and franchise taxes based on
income).
"PARTICIPANT" has the meaning specified in SUBSECTION
11.08(D).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"PENSION PLAN" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which the Company sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described
in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five (5) plan years.
"PERMITTED LIENS" has the meaning specified in SECTION 8.01.
"PERSON" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"PLAN" means an employee benefit plan (as defined in Section
3(3) of ERISA) which the Company sponsors or maintains or to which the
Company makes, is making, or is obligated to make contributions and
includes any Pension Plan.
"PLEDGE AGREEMENT" means the Pledge Agreement to be executed
by the Company, substantially in the form of Exhibit I, either as
originally executed or as it may from time to time be supplemented,
modified, amended or extended.
"PLEDGED COLLATERAL" means the certificates evidencing all of
the shares of capital stock held by the Company in all the domestic
Subsidiaries of the Company and 65% of the capital stock of the foreign
Subsidiaries of the Company.
13
"PRICING SCHEDULE" means the pricing schedule attached hereto
as EXHIBIT F.
"PRO RATA SHARE" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Bank's Commitment divided by the
combined Commitments of all Banks.
"RELATED AGREEMENTS" means the Company Operating Agreement,
the Master Transaction Agreement and the Capitalization Agreements.
"REPLACEMENT BANK" has the meaning specified in SECTION 4.08.
"REPORTABLE EVENT" means, any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"REQUIREMENT OF LAW" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"RESPONSIBLE OFFICER" means the chief executive officer or the
president of the Company, any vice president or the secretary, or any
other officer having substantially the same authority and
responsibility; or, with respect to compliance with financial
covenants, the chief financial officer or the treasurer of the Company,
or any other officer having substantially the same authority and
responsibility.
"REVOLVING LOAN" has the meaning specified in SECTION 2.01,
and may be a Base Rate Loan, or an Offshore Rate Loan (each, a "Type"
of Revolving Loan).
"REVOLVING TERMINATION DATE" means the earlier to occur of:
(a) August 29, 2003; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SECURITY AGREEMENT" means the security agreement to be
delivered by the Company substantially in the form of Exhibit J, either
as originally executed or as it may from time to time be supplemented,
modified, amended or extended.
"SUBORDINATED DEBT" means any unsecured Indebtedness of the
Company (a) no part of the principal of which is stated to be payable
or is required to be paid (whether by
14
way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the Revolving Termination Date, and
the payment of the principal of and interest on which and other
obligations of the Company in respect thereof are subordinated to the
prior payment in full of the principal of and interest (including
post-petition interest) on the Notes and all other obligations and
liabilities of the Company to the Agent and the Banks hereunder on
terms and conditions first approved in writing by the Majority Banks
and (b) otherwise containing terms, covenants and conditions
satisfactory in form and substance to the Majority Banks, as evidenced
by their prior written approval thereof.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
"SURETY INSTRUMENTS" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"SWAP CONTRACT" means any agreement, whether or not in
writing, that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or
option, bond, note or bill option, interest rate option, forward
foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or
any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
"SWAP TERMINATION VALUE" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the mark-to-market value(s)
for such Swap Contracts, as determined by the Company based upon one or
more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include any Bank).
"TAX DIVIDENDS" means the amount of payments in respect of
taxes owed by each Member to be paid pursuant to the Company Operating
Agreement in an amount not to exceed each Member's "Member's Assumed
Tax Rate" as defined in the Company Operating Agreement.
15
"TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Bank and the Agent, respectively, taxes imposed on or
measured by its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Bank or the Agent, as
the case may be, is organized or maintains a lending office.
"THOMAS" means Thomas Industries Inc.
"THOMAS NOTE" means the promissory notes of the Company in
favor of Thomas (and/or certain of its wholly-owned subsidiaries) dated
as of the Closing Date in an aggregate amount not greater than
$30,000,000.
"TYPE" has the meaning specified in the definition of
"Revolving Loan."
"UNFUNDED PENSION LIABILITY" means the excess of all Plans'
aggregate benefit liabilities under Section 4001(a)(16) of ERISA, over
the current value of those Plans' assets, determined in accordance with
the assumptions used for funding such Pension Plans pursuant to Section
412 of the Code for the applicable plan year.
"UNITED STATES" and "U.S." each means the United States of
America.
"WHOLLY-OWNED SUBSIDIARY" means any corporation in which
(other than directors' qualifying shares required by law) 100% of the
capital stock of each class having ordinary voting power, and 100% of
the capital stock of every other class, in each case, at the time as of
which any determination is being made, is owned, beneficially and of
record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.02 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and
other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each
mean "to but excluding", and the word "through" means "to and
including."
16
(c) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto, but only to the extent such amendments and
other modifications are not prohibited by the terms of any Loan
Document, and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(d) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation
of this Agreement.
1.03 ACCOUNTING PRINCIPLES
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and
all financial computations required under this Agreement shall be made,
in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
(c) In the event that GAAP changes during the term of this
Agreement such that the covenants contained in Section 8.13 would then
be calculated in a different manner or with different components or
with components which are calculated differently, (i) the parties
hereto agree to enter into negotiations with respect to amendments to
this Agreement to conform those covenants as criteria for evaluating
the Company's and its Subsidiaries' financial condition to
substantially the same criteria as were effective prior to such change
in GAAP, and (ii) the Company shall be deemed to be in compliance with
the affected covenants contained in Section 8.13 during the 90 days
following any change in GAAP if and to the extent that the Company
would have been in compliance therewith under GAAP as in effect
immediately before such change; PROVIDED, HOWEVER, that this paragraph
shall not be deemed to require the Company, the Agent or the Banks to
agree to modify any provision of this Agreement or any of the other
Loan Documents to reflect any such change to GAAP and, if, after such
90 days, the parties, in their sole discretion, fail to reach agreement
on such modifications, the terms of this Agreement will remain
unchanged and the compliance by the Company with the covenants
contained in Section 8.13 will be calculated in accordance with GAAP as
in effect immediately before such change.
17
ARTICLE II
THE CREDITS
2.01 AMOUNTS AND TERMS OF COMMITMENTS
(a) Each Bank severally agrees, on the terms and conditions
set forth herein, to make loans to the Company (each such loan, a
"REVOLVING LOAN") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an
aggregate amount not to exceed at any time outstanding, the amount set
forth on SCHEDULE 2.01 (such amount, as the same may be reduced under
SECTION 2.05 or as a result of one or more assignments under SECTION
10.08, or increased under SECTION 2.01(B), the Bank's "COMMITMENT");
provided, however, that, after giving effect to any Borrowing of
Revolving Loans, the Effective Amount of all outstanding Revolving
Loans, together with the Effective Amount of all L/C Obligations, shall
not at any time exceed the combined Commitments; and provided further,
that the Effective Amount of the Revolving Loans of any Bank plus the
participation of such Bank in the Effective Amount of all L/C
Obligations shall not at any time exceed such Bank's Commitment. Within
the limits of each Bank's Commitment, and subject to the other terms
and conditions hereof, the Company may borrow under this SECTION 2.01,
prepay under SECTION 2.06 and reborrow under this SECTION 2.01.
(b) INCREASE IN COMMITMENTS. The Company may request
the Banks through the Agent, but no more frequently than once every
twelve months, to increase the Commitment. The Agent shall transmit
such request to each Bank within one Business Day. Each Bank will have
the option, in its sole discretion, to subscribe for its proportionate
share of such requested increase, according to the Banks' respective
then existing Commitments. The Banks shall respond to the Company's
request through the Agent within thirty days in the form of EXHIBIT G.
Any Bank not responding within 30 days shall be deemed to have declined
the request. At the option of the Company, any part of the increase not
so subscribed may be assumed, within 30 days of the Banks' response, by
one or more existing Banks or assumed by other banks meeting the
qualifications of Eligible Assignee acceptable to the Agent, the
Issuing Bank and the Company, which consent of the Agent and the
Issuing Bank shall not be unreasonably withheld, upon submission of a
supplement in form of EXHIBIT H and SCHEDULE 2.01 shall be amended
accordingly. After giving effect to all increases by the Banks and by
other banks which have become Banks pursuant to the supplement, (i) no
Bank's Commitment shall be greater than 25% of the combined
Commitments, and (ii) the Commitment shall not be increased (whether
through an increase or a series of increases pursuant to this SECTION
2.01(B)) by an amount more than Twenty-Five Million Dollars
($25,000,000).
2.02 LOAN ACCOUNTS.
(a) The Loans made by each Bank and the Letters of Credit
Issued by the Issuing Bank shall be evidenced by one or more accounts
or records maintained by such Bank or Issuing Bank, as the case may be,
in the ordinary course of business. The
18
accounts or records maintained by the Agent, the Issuing Bank and each
Bank shall be conclusive absent manifest error of the amount of the
Loans made by the Banks to the Company and the Letters of Credit Issued
for the account of the Company, and the interest and payments thereon.
Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Company hereunder to
pay any amount owing with respect to the Loans or any Letter of Credit.
(b) Upon the request of any Bank made through the Agent, the
Loans made by such Bank may be evidenced by one or more notes, instead
of or in addition to loan accounts. Each such Bank shall endorse on the
schedules annexed to its note(s) the date, amount and maturity of each
Loan made by it and the amount of each payment of principal made by the
Company with respect thereto. Each such Bank is irrevocably authorized
by the Company to endorse its note(s) and each Bank's record shall be
conclusive absent manifest error; PROVIDED, HOWEVER, that the failure
of a Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations
of the Company hereunder or under any such note to such Bank.
2.03 PROCEDURE FOR BORROWING.
(a) Each Borrowing of Revolving Loans shall be made upon the
Company's irrevocable written notice delivered to the Agent in the form
of a Notice of Borrowing (which notice must be received by the Agent
prior to 12:00 noon New York City time) (i) three (3) Business Days
prior to the requested Borrowing Date, in the case of Offshore Rate
Loans; and (ii) on the requested Borrowing Date, in the case of Base
Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing; and
(D) the duration of the Interest Period, if any,
applicable to such Loans included in such notice. If the
Notice of Borrowing fails to specify the duration of the
Interest Period for any Borrowing comprised of Offshore Rate
Loans, such Interest Period shall be three months.
PROVIDED, HOWEVER, that with respect to the Borrowing to be made on the
Closing Date, the Notice of Borrowing shall be delivered to the Agent
not later than 12:00 noon (New York City time) one Business Day before
the Closing Date and such Borrowing will consist of Base Rate Loans
only.
19
(b) The Agent will promptly notify each Bank of its receipt of
any Notice of Borrowing and of the amount of such Bank's Pro Rata Share
of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of
each Borrowing available to the Agent for the account of the Company at
the Agent's Payment Office by 1:00 p.m. (New York City time) on the
Borrowing Date requested by the Company in funds immediately available
to the Agent. The proceeds of all such Loans will then be made
available to the Company by the Agent at such office by 1:30 p.m. by
crediting the account of the Company on the books of BofA with the
aggregate of the amounts made available to the Agent by the Banks and
in like funds as received by the Agent.
(d) After giving effect to any Borrowing, unless the Agent
shall otherwise consent, there may not be more than ten different
Interest Periods in effect.
2.04 CONVERSION AND CONTINUATION ELECTIONS.
(a) The Company may, upon irrevocable written notice to the
Agent in accordance with SUBSECTION 2.04(B):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable
Interest Period, in the case of any other Type of Revolving
Loans, to convert any such Loans (or any part thereof in an
amount not less than $5,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof) into Loans of any
other Type; or
(ii) elect as of the last day of the applicable
Interest Period, to continue any Revolving Loans having
Interest Periods expiring on such day (or any part thereof in
an amount not less than $5,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof);
PROVIDED THAT, if at any time the aggregate amount of Offshore Rate
Loans in respect of any Borrowing is reduced, by payment, prepayment,
or conversion of part thereof to be less than $5,000,000, such Offshore
Rate Loans shall automatically convert into Base Rate Loans, and on and
after such date the right of the Company to continue such Loans as, and
convert such Loans into, Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/
Continuation to be received by the Agent not later than 12:00 noon (New
York City time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or
continued as Offshore Rate Loans; and (ii) on the Conversion/
Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
20
(B) the aggregate amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans, the Company has failed to select timely a new
Interest Period to be applicable to such Offshore Rate Loans, the
Company shall be deemed to have elected to convert such Offshore Rate
Loans into Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of
a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Agent will promptly notify each Bank of
the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the
notice was given held by each Bank.
(e) Unless the Majority Banks otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect
to have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, unless the Agent shall otherwise consent, there may not be more
than ten different Interest Periods in effect.
2.05 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The Company
may, upon not less than three Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments by an aggregate
minimum amount of $5,000,000 or any integral multiple of $1,000,000 in excess
thereof; UNLESS, after giving effect thereto and to any prepayments of Loans
made on or before the effective date thereof, (a) the Effective Amount of all
Revolving Loans, and L/C Obligations together would exceed the amount of the
combined Commitments then in effect, or (b) the Effective Amount of all L/C
Obligations then outstanding would exceed the L/C Commitment. Once reduced in
accordance with this Section, the Commitments may not be increased. Any
reduction of the Commitments shall be applied to each Bank's Commitment
according to its Pro Rata Share. If and to the extent specified by the Company
in the notice to the Agent, some or all of the reduction in the combined
Commitments shall be applied to reduce the L/C Commitment. All accrued
commitment and letter of credit fees to, but not including, the effective date
of any reduction or termination of Commitments, shall be paid on the effective
date of such reduction or termination.
21
2.06 OPTIONAL PREPAYMENTS. Subject to SECTION 4.04, the Company may, at
any time or from time to time, upon not less than three Business Days'
irrevocable notice to the Agent in the case of Offshore Rate Loans, or one
Business Day's irrevocable notice to the Agent in the case of Base Rate Loans,
ratably prepay Loans in whole or in part, in minimum amounts of $5,000,000 or
any integral multiple of $1,000,000 in excess thereof. Such notice of prepayment
shall specify the date and amount of such prepayment and the Type(s) of Loans to
be prepaid. The Agent will promptly notify each Bank of its receipt of any such
notice, and of such Bank's Pro Rata Share of such prepayment. If such notice is
given by the Company, the Company shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein, together with, in the case of Offshore Rate Loans, accrued interest to
each such date on the amount prepaid and any amounts required pursuant to
SECTION 4.04.
2.07 MANDATORY COLLATERALIZATION OF L/C OBLIGATIONS; MANDATORY
PREPAYMENTS. If on any date the Effective Amount of L/C Obligations exceeds the
L/C Commitment, the Company shall Cash Collateralize on such date the
outstanding Letters of Credit in an amount equal to the excess of the maximum
amount then available to be drawn under the Letters of Credit over the L/C
Commitment. Subject to SECTION 4.04, if on any date after giving effect to any
Cash Collateralization made on such date pursuant to the preceding sentence, the
Effective Amount of all Revolving Loans then outstanding plus the Effective
Amount of all L/C Obligations exceeds the combined Commitments, the Company
shall immediately, and without notice or demand, prepay the outstanding
principal amount of the Revolving Loans and L/C Advances by an amount equal to
the applicable excess.
2.08 REPAYMENT. The Company shall repay to the Banks on the Revolving
Termination Date the aggregate principal amount of Revolving Loans outstanding
on such date.
2.09 INTEREST
(a) Each Revolving Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate
per annum equal to the Offshore Rate or the Base Rate, as the case may
be (and subject to the Company's right to convert to other Types of
Loans under SECTION 2.04), PLUS, in the case of Offshore Rate Loans, the
Offshore Rate Margin.
(b) Interest on each Revolving Loan shall be paid in arrears
on each Interest Payment Date. Interest shall also be paid on the date
of any prepayment of Offshore Rate Loans under SECTION 2.06 for the
portion of the Loans so prepaid and upon payment (including prepayment)
in full thereof and, during the existence of any Event of Default,
interest shall be paid on demand of the Agent at the request or with
the consent of the Majority Banks.
(c) Notwithstanding SUBSECTION (A) of this Section, if any
amount of principal of or interest on any Loan, or any other amount
payable hereunder or under any other Loan Document is not paid in full
when due (whether at stated maturity, by acceleration, demand or
otherwise), the Company agrees to pay interest on such unpaid principal
or
22
other amount, from the date such amount becomes due until the date such
amount is paid in full, and after as well as before any entry of
judgment thereon to the extent permitted by law, payable on demand, at
a fluctuating rate per annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Bank hereunder shall be subject to
the limitation that payments of interest shall not be required for any
period for which interest is computed hereunder, to the extent (but
only to the extent) that contracting for or receiving such payment by
such Bank would be contrary to the provisions of any law applicable to
such Bank limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Bank, and in such event the
Company shall pay such Bank interest at the highest rate permitted by
applicable law.
2.10 FEES. In addition to certain fees described in SECTION 3.08:
(a) ARRANGEMENT, AGENCY FEES. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and
shall pay an agency fee to the Agent for the Agent's own account, as
required by the letter agreement ("FEE LETTER") between the Company and
the Arranger and Agent dated July 16, 1998.
(b) COMMITMENT FEES. The Company shall pay to the Agent for
the account of each Bank a commitment fee on the actual daily unused
portion of such Bank's Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon
the daily utilization for that quarter as calculated by the Agent,
equal to Commitment Fee Rate. For purposes of calculating utilization
under this subsection, the Commitments shall be deemed used to the
extent of the Effective Amount of Revolving Loans then outstanding,
plus the Effective Amount of L/C Obligations then outstanding. Such
commitment fee shall accrue from the Closing Date to the Revolving
Termination Date and shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter commencing on September
30, 1998 through the Revolving Termination Date, with the final payment
to be made on the Revolving Termination Date; PROVIDED THAT, in
connection with any reduction or termination of Commitments under
SECTION 2.05, the accrued commitment fee calculated for the period
ending on such date shall also be paid on the date of such reduction or
termination, with the following quarterly payment being calculated on
the basis of the period from such reduction or termination date to such
quarterly payment date. The commitment fees provided in this subsection
shall accrue at all times after the above-mentioned commencement date,
including at any time during which one or more conditions in ARTICLE V
are not met.
2.11 COMPUTATION OF FEES AND INTEREST.
(a) All computations of interest for Base Rate Loans when the
Base Rate is determined by BofA's "REFERENCE RATE" shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results
23
in more interest being paid than if computed on the basis of a 365-day
year). Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the
last day thereof.
(b) Each determination of an interest rate by the Agent shall
be conclusive and binding on the Company and the Banks in the absence
of manifest error. The Agent will, at the request of the Company or any
Bank, deliver to the Company or the Bank, as the case may be, a
statement showing the quotations used by the Agent in determining any
interest rate and the resulting interest rate.
2.12 PAYMENTS.
(a) All payments to be made by the Company shall be made
without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by the Company shall be made to
the Agent for the account of the Banks at the Agent's Payment Office,
and shall be made in dollars and in immediately available funds, no
later than 12:00 noon (New York City time) on the date specified
herein. The Agent will promptly distribute to each Bank its Pro Rata
Share (or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the Agent
later than 12:00 noon (New York City time) shall be deemed to have been
received on the following Business Day and any applicable interest or
fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"INTEREST PERIOD" herein, whenever any payment is due on a day other
than a Business Day, such payment shall be made on the following
Business Day, and such extension of time shall in such case be included
in the computation of interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to
the date on which any payment is due to the Banks that the Company will
not make such payment in full as and when required, the Agent may
assume that the Company has made such payment in full to the Agent on
such date in immediately available funds and the Agent may (but shall
not be so required), in reliance upon such assumption, distribute to
each Bank on such due date an amount equal to the amount then due such
Bank. If and to the extent the Company has not made such payment in
full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon at the
Federal Funds Rate for each day from the date such amount is
distributed to such Bank until the date repaid.
2.13 PAYMENTS BY THE BANKS TO THE AGENT.
(a) Unless the Agent receives notice from a Bank on or prior
to the Closing Date or, with respect to any Borrowing after the Closing
Date, on the Business Day of such Borrowing, that such Bank will not
make available as and when required hereunder to the Agent for the
account of the Company the amount of that Bank's Pro Rata Share of the
Borrowing, the Agent may assume that each Bank has made such amount
available to
24
the Agent in immediately available funds on the Borrowing Date and the
Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full
amount available to the Agent in immediately available funds and the
Agent in such circumstances has made available to the Company such
amount, that Bank shall on the Business Day following such Borrowing
Date make such amount available to the Agent, together with interest at
the Federal Funds Rate for each day during such period. A notice of the
Agent submitted to any Bank with respect to amounts owing under this
SUBSECTION (A) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Agent shall constitute
such Bank's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Agent on the
Business Day following the Borrowing Date, the Agent will notify the
Company of such failure to fund and, upon demand by the Agent, the
Company shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of
such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to
make a Loan on such Borrowing Date, but no Bank shall be responsible
for the failure of any other Bank to make the Loan to be made by such
other Bank on any Borrowing Date.
2.14 SHARING OF PAYMENTS, ETC. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Bank shall immediately (a) notify the Agent of
such fact, and (b) purchase from the other Banks such participations in the
Loans made by them as shall be necessary to cause such purchasing Bank to share
the excess payment pro rata with each of them; PROVIDED, HOWEVER, that if all or
any portion of such excess payment is thereafter recovered from the purchasing
Bank, such purchase shall to that extent be rescinded and each other Bank shall
repay to the purchasing Bank the purchase price paid therefor, together with an
amount equal to such paying Bank's ratable share (according to the proportion of
(i) the amount of such paying Bank's required repayment to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Company agrees that any Bank so purchasing a participation from another Bank
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to SECTION 11.10) with respect to
such participation as fully as if such Bank were the direct creditor of the
Company in the amount of such participation. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Banks following any such purchases or repayments.
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ARTICLE III
THE LETTERS OF CREDIT
3.01 THE LETTER OF CREDIT SUBFACILITY.
(a) On the terms and conditions set forth herein (i) the
Issuing Bank agrees, (A) from time to time on any Business Day during
the period from the Closing Date to the Revolving Termination Date to
Issue Letters of Credit for the account of the Company, and to amend or
renew Letters of Credit previously Issued by it, in accordance with
SUBSECTIONS 3.02(C) and 3.02(D), and (B) to honor drafts under the
Letters of Credit; and (ii) the Banks severally agree to participate in
Letters of Credit Issued for the account of the Company; PROVIDED, that
the Issuing Bank shall not be obligated to Issue, and no Bank shall be
obligated to participate in, any Letter of Credit if as of the date of
Issuance of such Letter of Credit (the "ISSUANCE DATE") (1) the
Effective Amount of all L/C Obligations plus the Effective Amount of
all Revolving Loans exceeds the combined Commitments, (2) the
participation of any Bank in the Effective Amount of all L/C
Obligations plus the Effective Amount of the Revolving Loans of such
Bank exceeds such Bank's Commitment, or (3) the Effective Amount of L/C
Obligations exceeds the L/C Commitment. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Company's
ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, the Company may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit which have expired or
which have been drawn upon and reimbursed.
(b) The Issuing Bank is under no obligation to Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the Issuing Bank from Issuing such Letter of
Credit, or any Requirement of Law applicable to the Issuing
Bank or any request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request
that the Issuing Bank refrain from, the Issuance of letters of
credit generally or such Letter of Credit in particular or
shall impose upon the Issuing Bank with respect to such Letter
of Credit any restriction, reserve or capital requirement (for
which the Issuing Bank is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the
Issuing Bank any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the Issuing Bank
in good faith deems material to it;
(ii) the Issuing Bank has received written notice
which remains in effect from any Bank, the Agent or the
Company, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that one
or more of the applicable conditions contained in ARTICLE V is
not then satisfied unless the Majority Banks shall have
approved in writing;
26
(iii) the expiry date of the requested Letter of
Credit is (A) more than 366 days after the date of Issuance,
unless the Majority Banks have approved such expiry date in
writing, or (B) later than five days before the Revolving
Termination Date, unless all of the Banks have approved such
expiry date in writing;
(iv) the expiry date of the requested Letter of
Credit is prior to the maturity date of any financial
obligation to be supported by the requested Letter of Credit
except with respect to the Letters of Credit supporting the
IRB;
(v) such requested Letter of Credit does not provide
for drafts, or is not otherwise in form and substance
acceptable to the Issuing Bank, or the Issuance of such Letter
of Credit shall violate any applicable policies of the Issuing
Bank;
(vi) any such Letter of Credit is a standby Letter of
Credit for the purpose of supporting the issuance of any
letter of credit by any other Person; or
(vii) such Letter of Credit is in a face amount less
than $1,000,000 or to be denominated in a currency other than
Dollars.
3.02 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT
(a) Each Letter of Credit shall be Issued upon the irrevocable
written request of the Company received by the Issuing Bank (with a
copy sent by the Company to the Agent) at least three days but no more
than ten days prior to the proposed date of issuance. Each such request
for issuance of a Letter of Credit shall be by facsimile, confirmed
immediately in an original writing, in the form of an L/C Application,
and shall specify in form and detail satisfactory to the Issuing Bank:
(i) the proposed date of issuance of the Letter of Credit (which shall
be a Business Day); (ii) the face amount of the Letter of Credit; (iii)
the expiry date of the Letter of Credit; (iv) the name and address of
the beneficiary thereof; (v) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by the
beneficiary in case of any drawing thereunder; and (vii) such other
matters as the Issuing Bank may require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit, the Issuing Bank will confirm with the Agent (by
telephone or in writing) that the Agent has received a copy of the L/C
Application or L/C Amendment Application from the Company and, if not,
the Issuing Bank will provide the Agent with a copy thereof. Unless the
Issuing Bank has received notice on or before the Business Day
immediately preceding the date the Issuing Bank is to Issue a requested
Letter of Credit from the Agent (A) directing the Issuing Bank not to
Issue such Letter of Credit because such issuance is not then permitted
under SUBSECTION 3.01(A) as a result of the limitations set forth in
clauses (1) through (3) thereof or SUBSECTION 3.01(B)(II); or (B) that
one or more conditions specified in ARTICLE V are not then satisfied;
then, subject to the terms and conditions
27
hereof, the Issuing Bank shall, on the requested date, Issue a Letter
of Credit for the account of the Company in accordance with the Issuing
Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Revolving Termination Date, the Issuing Bank will,
upon the written request of the Company received by the Issuing Bank
(with a copy sent by the Company to the Agent) at least three days but
no more than ten days prior to the proposed date of amendment, amend
any Letter of Credit Issued by it. Each such request for amendment of a
Letter of Credit shall be made by facsimile, confirmed immediately in
an original writing, made in the form of an L/C Amendment Application
and shall specify in form and detail satisfactory to the Issuing Bank:
(i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a Business Day);
(iii) the nature of the proposed amendment; and (iv) such other matters
as the Issuing Bank may reasonably require. The Issuing Bank shall be
under no obligation to amend any Letter of Credit if: (A) the Issuing
Bank would have no obligation at such time to Issue such Letter of
Credit in its amended form under the terms of this Agreement; or (B)
the beneficiary of any such letter of Credit does not accept the
proposed amendment to the Letter of Credit. The Agent will promptly
notify the Banks of the receipt by it of any L/C Application or L/C
Amendment Application.
(d) The Issuing Bank and the Banks agree that, while a Letter
of Credit is outstanding and prior to the Revolving Termination Date,
at the option of the Company and upon the written request of the
Company received by the Issuing Bank (with a copy sent by the Company
to the Agent) at least five days (or such shorter time as the Issuing
Bank may agree in a particular instance in its sole discretion) prior
to the proposed date of notification of renewal, the Issuing Bank shall
be entitled to authorize the renewal of any Letter of Credit Issued by
it. Each such request for renewal of a Letter of Credit shall be made
by facsimile, confirmed immediately in an original writing, in the form
of an L/C Amendment Application, and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the revised
expiry date of the Letter of Credit; and (iv) such other matters as the
Issuing Bank may require. The Issuing Bank shall be under no obligation
so to renew any Letter of Credit if: (A) the Issuing Bank would have no
obligation at such time to Issue or amend such Letter of Credit in its
renewed form under the terms of this Agreement; or (B) the beneficiary
of any such Letter of Credit does not accept the proposed renewal of
the Letter of Credit. If any outstanding Letter of Credit shall provide
that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Issuing Bank that such Letter of Credit shall
not be renewed, and if at the time of renewal the Issuing Bank would be
entitled to authorize the automatic renewal of such Letter of Credit in
accordance with this SUBSECTION 3.02(E) upon the request of the Company
but the Issuing Bank shall not have received any L/C Amendment
Application from the Company with respect to such renewal or other
written direction by the Company with respect thereto, the Issuing Bank
shall nonetheless be permitted to allow such Letter of Credit to renew,
and the Company and
28
the Banks hereby authorize such renewal, and, accordingly, the Issuing
Bank shall be deemed to have received an L/C Amendment Application from
the Company requesting such renewal.
(e) The Issuing Bank may, at its election (or as required by
the Agent at the direction of the Majority Banks), deliver any notices
of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the
expiry date of such Letter of Credit to be a date not later than the
Revolving Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of Credit,
or amendment to or renewal of a Letter of Credit, to an advising bank
or a beneficiary, a true and complete copy of each such Letter of
Credit or amendment to or renewal of a Letter of Credit.
3.03 EXISTING BOFA LETTERS OF CREDIT; RISK PARTICIPATIONS, DRAWINGS AND
REIMBURSEMENTS.
(a) On and after the Closing Date, the Existing BofA Letters
of Credit shall be deemed Letters of Credit outstanding under this
Agreement and shall be governed by and entitled to the benefits of this
Agreement and the other Loan Documents for all purposes, including for
purposes of the fees to be collected pursuant to SUBSECTIONS 3.08(A)
and 3.08(C), and reimbursement of costs and expenses to the extent
provided herein. Each Bank shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Issuing Bank on the
Closing Date a participation in each such Letter of Credit and each
drawing thereunder in an amount equal to the product of (i) such Bank's
Pro Rata Share times (ii) the maximum amount available to be drawn
under such Letter of Credit and the amount of such drawing,
respectively. For purposes of SUBSECTION 2.01(B) and SUBSECTION
2.10(B), the Existing BofA Letters of Credit shall be deemed to utilize
pro rata the Commitment of each Bank.
(b) Immediately upon the Issuance of each Letter of Credit in
addition to those described in SUBSECTION 3.03(A), each Bank shall be
deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Bank a participation in such Letter of Credit
and each drawing thereunder in an amount equal to the product of (i)
the Pro Rata Share of such Bank, times (ii) the maximum amount
available to be drawn under such Letter of Credit and the amount of
such drawing, respectively. For purposes of SUBSECTION 2.01(B), each
Issuance of a Letter of Credit shall be deemed to utilize the
Commitment of each Bank by an amount equal to the amount of such
participation.
29
(c) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuing Bank
will promptly notify the Company. The Company shall reimburse the
Issuing Bank prior to 11:00 a.m.(New York City time), on each date that
any amount is paid by the Issuing Bank under any Letter of Credit (each
such date, an "HONOR DATE"), in an amount equal to the amount so paid
by the Issuing Bank. In the event the Company fails to reimburse the
Issuing Bank for the full amount of any drawing under any Letter of
Credit by 11:00 a.m. (New York City time) on the Honor Date, the
Issuing Bank will promptly notify the Agent and the Agent will promptly
notify each Bank thereof, and the Company shall be deemed to have
requested that Base Rate Loans be made by the Banks to be disbursed on
the Honor Date under such Letter of Credit, subject to the amount of
the unutilized portion of the Revolving Commitment and subject to the
conditions set forth in SECTION 5.02. Any notice given by the Issuing
Bank or the Agent pursuant to this SUBSECTION 3.03(C) may be oral if
immediately confirmed in writing (including by facsimile); PROVIDED
THAT the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(d) Each Bank shall upon any notice pursuant to SUBSECTION
3.03(C) make available to the Agent for the account of the relevant
Issuing Bank an amount in Dollars and in immediately available funds
equal to its Pro Rata Share of the amount of the drawing, whereupon the
participating Banks shall (subject to SUBSECTION 3.03(E)) each be
deemed to have made a Revolving Loan consisting of a Base Rate Loan to
the Company in that amount. If any Bank so notified fails to make
available to the Agent for the account of the Issuing Bank the amount
of such Bank's Pro Rata Share of the amount of the drawing by no later
than 12:00 noon (New York City time) on the Honor Date, then interest
shall accrue on such Bank's obligation to make such payment, from the
Honor Date to the date such Bank makes such payment, at a rate per
annum equal to the Federal Funds Rate in effect from time to time
during such period. The Agent will promptly give notice of the
occurrence of the Honor Date, but failure of the Agent to give any such
notice on the Honor Date or in sufficient time to enable any Bank to
effect such payment on such date shall not relieve such Bank from its
obligations under this SECTION 3.03.
(e) With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans to the
Company in whole or in part, because of the Company's failure to
satisfy the conditions set forth in SECTION 5.02 or for any other
reason, the Company shall be deemed to have incurred from the Issuing
Bank an L/C Borrowing in the amount of such drawing, which L/C
Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at a rate per annum equal to the Base Rate plus
2% per annum, and each Bank's payment to the Issuing Bank pursuant to
SUBSECTION 3.03(D) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Bank in satisfaction of its participation obligation under
this SECTION 3.03.
(f) Each Bank's obligation in accordance with this Agreement
to make the Revolving Loans or L/C Advances, as contemplated by this
SECTION 3.03, as a result of a drawing under a Letter of Credit, shall
be absolute and unconditional and without recourse
30
to the Issuing Bank and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other
right which such Bank may have against the Issuing Bank, the Company or
any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material Adverse
Effect; or (iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; PROVIDED, however, that
each Bank's obligation to make Revolving Loans or L/C Advances under
this SECTION 3.03 is subject to the conditions set forth in SECTION
5.02.
3.04 REPAYMENT OF PARTICIPATIONS.
(a) Upon (and only upon) receipt by the Agent for the account
of the Issuing Bank of immediately available funds from the Company (i)
in reimbursement of any payment made by the Issuing Bank under the
Letter of Credit with respect to which any Bank has paid the Agent for
the account of the Issuing Bank for such Bank's participation in the
Letter of Credit pursuant to SECTION 3.03 or (ii) in payment of
interest thereon, the Agent will pay to each Bank, in the same funds as
those received by the Agent for the account of the Issuing Bank, the
amount of such Bank's Pro Rata Share of such funds, and the Issuing
Bank shall receive the amount of the Pro Rata Share of such funds of
any Bank that did not so pay the Agent for the account of the Issuing
Bank.
(b) If the Agent or the Issuing Bank is required at any time
to return to the Company, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion of
the payments made by the Company to the Agent for the account of the
Issuing Bank pursuant to SUBSECTION 3.04(A) in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon,
each Bank shall, on demand of the Agent, forthwith return to the Agent
or the Issuing Bank the amount of its Pro Rata Share of any amounts so
returned by the Agent or the Issuing Bank plus interest thereon from
the date such demand is made to the date such amounts are returned by
such Bank to the Agent or the Issuing Bank, at a rate per annum equal
to the Federal Funds Rate in effect from time to time.
3.05 ROLE OF THE ISSUING BANK
(a) Each Bank and the Company agree that, in paying any
drawing under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any
such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank shall be
liable to any Bank for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Banks (including
the Majority Banks, as applicable); (ii) any action taken or omitted in
the
31
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any L/C-Related
Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; PROVIDED, however, that this assumption is not
intended to, and shall not, preclude the Company's pursuing such rights
and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. No Agent-Related Person, nor any of
the respective correspondents, participants or assignees of the Issuing
Bank, shall be liable or responsible for any of the matters described
in clauses (i) through (vii) of SECTION 3.06; PROVIDED, however,
anything in such clauses to the contrary notwithstanding, that the
Company may have a claim against the Issuing Bank, and the Issuing Bank
may be liable to the Company, to the extent, but only to the extent, of
any direct, as opposed to consequential or exemplary, damages suffered
by the Company which the Company proves were caused by the Issuing
Bank's willful misconduct or gross negligence or the Issuing Bank's
willful or grossly negligent failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the
foregoing: (i) the Issuing Bank may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary;
and (ii) the Issuing Bank shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason.
3.06 OBLIGATIONS ABSOLUTE. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Bank for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Revolving Loans, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with this Agreement, the
32
transactions contemplated hereby or by the L/C-Related Documents or any
unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment made by
the Issuing Bank under any Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of
or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Company or a guarantor.
3.07 CASH COLLATERAL PLEDGE. Upon (i) the request of the Agent, (A) if
the Issuing Bank has honored any full or partial drawing request on any Letter
of Credit and such drawing has resulted in an L/C Borrowing hereunder, or (B)
if, as of the Revolving Termination Date, any Letters of Credit may for any
reason remain outstanding and partially or wholly undrawn, or (ii) the
occurrence of the circumstances described in SUBSECTION 2.07 requiring the
Company to Cash Collateralize Letters of Credit, then, the Company shall
immediately Cash Collateralize the L/C Obligations in an amount equal to such
L/C Obligations. The Company hereby grants the Agent, for the benefit of the
Agent, the Issuing Bank and the Banks, a security interest in all such cash and
deposit account balances. Cash collateral shall be maintained in blocked,
non-interest bearing deposit accounts at BofA. In the event that the L/C
Borrowing is repaid or the circumstances requiring the Company to Cash
Collateralize Letters of Credit no longer exist, the Agent shall release the
funds being maintained in the blocked, non-interest bearing account to the
Company.
3.08 LETTER OF CREDIT FEES.
(a) The Company shall pay to the Agent for the account of each
of the Banks a letter of credit fee with respect to the Letters of Credit equal
to the Offshore Rate Margin then in effect with respect to Offshore Rate Loans
on the actual daily maximum amount available to be
33
drawn of the outstanding Letters of Credit, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon Letters of
Credit outstanding for that quarter as calculated by the Agent. Such letter of
credit fees shall be due and payable quarterly in arrears on the last Business
Day of each calendar quarter during which Letters of Credit are outstanding,
commencing on the first such quarterly date to occur after the Closing Date,
through the Revolving Termination Date (or such later date upon which the
outstanding Letters of Credit shall expire), with the final payment to be made
on the Revolving Termination Date (or such later expiration date).
(b) The Company shall pay to the Issuing Bank a letter of
credit fronting fee for each Letter of Credit Issued by the Issuing Bank equal
to 0.150% of the face amount (or increased face amount, as the case may be) of
such Letter of Credit. Such Letter of Credit fronting fee shall be due and
payable on each date of Issuance of a Letter of Credit.
(c) The Company shall pay to the Issuing Bank from time to
time on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuing Bank relating to
letters of credit as from time to time in effect.
3.09. UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and Practice
for Documentary Credits as published by the International Chamber of Commerce
most recently at the time of issuance of any Letter of Credit shall (unless
otherwise expressly provided in the Letters of Credit) apply to the Letters of
Credit.
34
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 TAXES.
(a) Any and all payments by the Company to each Bank or the
Agent under this Agreement and any other Loan Document shall be made
free and clear of, and without deduction or withholding for, any Taxes.
In addition, the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of
any sum payable hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to
additional sums payable under this Section), such Bank or the
Agent, as the case may be, receives and retains an amount
equal to the sum it would have received and retained had no
such deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings;
(iii) the Company shall pay the full amount deducted
or withheld to the relevant taxing authority or other
authority in accordance with applicable law; and
(iv) the Company shall also pay to each Bank or the
Agent for the account of such Bank, at the time interest is
paid, Further Taxes in the amount that the respective Bank
specifies as necessary to preserve the after-tax yield the
Bank would have received if such Taxes, Other Taxes or Further
Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each
Bank and the Agent for the full amount of i) Taxes, ii) Other Taxes,
and iii) Further Taxes in the amount that the respective Bank specifies
as necessary to preserve the after-tax yield the Bank would have
received if such Taxes, Other Taxes or Further Taxes had not been
imposed, and any liability (including penalties, interest, additions to
tax and expenses) arising therefrom or with respect thereto, whether or
not such Taxes, Other Taxes or Further Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30
days after the date the Bank or the Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by the
Company of Taxes, Other Taxes or Further Taxes, the Company shall
furnish to each Bank or the Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of payment
satisfactory to such Bank or the Agent.
35
(e) If the Company is required to pay any amount to any Bank
or the Agent pursuant to SUBSECTION (B) or (C) of this Section, then
such Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending
Office so as to eliminate any such additional payment by the Company
which may thereafter accrue, if such change in the sole judgment of
such Bank is not otherwise disadvantageous to such Bank.
4.02 ILLEGALITY.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Bank or its applicable Lending
Office to make Offshore Rate Loans, then, on notice thereof by the Bank
to the Company through the Agent, any obligation of that Bank to make
Offshore Rate Loans shall be suspended until the Bank notifies the
Agent and the Company that the circumstances giving rise to such
determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of
such fact and demand from such Bank (with a copy to the Agent), prepay
in full such Offshore Rate Loans of that Bank then outstanding,
together with interest accrued thereon and amounts required under
SECTION 4.04, either on the last day of the Interest Period thereof, if
the Bank may lawfully continue to maintain such Offshore Rate Loans to
such day, or immediately, if the Bank may not lawfully continue to
maintain such Offshore Rate Loan. If the Company is required to so
prepay any Offshore Rate Loan, then concurrently with such prepayment,
the Company shall borrow from the affected Bank, in the amount of such
repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain Offshore
Rate Loans has been so terminated or suspended, the Company may elect,
by giving notice to the Bank through the Agent that all Loans which
would otherwise be made by the Bank as Offshore Rate Loans shall be
instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Bank shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the
need for giving such notice or making such demand and will not, in the
judgment of the Bank, be illegal or otherwise disadvantageous to the
Bank.
4.03 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Bank determines that, due to either (i) the
introduction of or any change (other than any change by way of
imposition of or increase in reserve requirements included in the
calculation of the Offshore Rate in or in the interpretation of any law
or
36
regulation or (ii) the compliance by that Bank with any guideline or
request from any central bank or other Governmental Authority (whether
or not having the force of law), there shall be any increase in the
cost to such Bank of agreeing to make or making, funding or maintaining
any Offshore Rate Loans or participating in Letters of Credit, or, in
the case of the Issuing Bank, any increase in the cost to the Issuing
Bank of agreeing to Issue, issuing or maintaining any Letter of Credit
or of agreeing to make or making, funding or maintaining any unpaid
drawing under any Letter of Credit, then the Company shall be liable
for, and shall from time to time, 15 days after demand (with a copy of
such demand to be sent to the Agent), pay to the Agent for the account
of such Bank, additional amounts as are sufficient to compensate such
Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank
or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Bank (or its Lending
Office) or any corporation controlling the Bank with any Capital
Adequacy Regulation, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any corporation
controlling the Bank and (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital
is increased as a consequence of its Commitment, loans, credits or
obligations under this Agreement, then, upon demand of such Bank to the
Company through the Agent, the Company shall pay to the Bank, from time
to time as specified by the Bank, additional amounts sufficient to
compensate the Bank for such increase.
4.04 FUNDING LOSSES. The Company shall reimburse each Bank and hold
each Bank harmless from any loss or expense which the Bank may sustain or incur
as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert
a Loan after the Company has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under SECTION 2.06 or under
SECTION 2.07;
(d) the prepayment (including pursuant to SECTION 2.07) or
other payment (including after acceleration thereof) of an Offshore
Rate Loan on a day that is not the last day of the relevant Interest
Period; or
(e) the automatic conversion under SECTION 2.04 of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last
day of the relevant Interest Period; including
37
any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from
fees payable to terminate the deposits from which such funds were
obtained. For purposes of calculating amounts payable by the Company to
the Banks under this Section and under SUBSECTION 4.03(A), each
Offshore Rate Loan made by a Bank (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to have
been funded at the LIBOR used in determining the Offshore Rate for such
Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Offshore Rate Loan is in fact so
funded.
4.05 INABILITY TO DETERMINE RATES. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan, or that the Offshore Rate applicable pursuant to SUBSECTION 2.09(A) for
any requested Interest Period with respect to a proposed Offshore Rate Loan does
not adequately and fairly reflect the cost to the Banks of funding such Loan,
the Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans hereunder shall
be suspended until the Agent upon the instruction of the Majority Banks revokes
such notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the Banks shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Offshore Rate Loans.
4.06 RESERVES ON OFFSHORE RATE LOANS. The Company shall pay to each
Bank, as long as such Bank shall be required under regulations of the FRB to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "EUROCURRENCY
LIABILITIES"), additional costs on the unpaid principal amount of each Offshore
Rate Loan equal to the actual costs of such reserves allocated to such Loan by
the Bank (as determined by the Bank in good faith, which determination shall be
conclusive), payable on each date on which interest is payable on such Loan,
provided the Company shall have received at least 15 days' prior written notice
(with a copy to the Agent) of such additional interest from the Bank. If a Bank
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be payable 15 days from receipt of such notice.
4.07 CERTIFICATES OF BANKS. Any Bank claiming reimbursement or
compensation under this ARTICLE IV shall deliver to the Company (with a copy to
the Agent) a certificate setting forth in reasonable detail the amount payable
to the Bank hereunder and such certificate shall be conclusive and binding on
the Company in the absence of manifest error.
4.08 SUBSTITUTION OF BANKS. Upon the receipt by the Company from any
Bank (an "AFFECTED BANK") of a claim for compensation under SECTION 4.03, the
Company may: (i) request the Affected Bank to use its best efforts to obtain a
replacement bank or financial institution satisfactory to the Company to acquire
and assume all or a ratable part of all of such Affected Bank's Loans and
Commitment (a "REPLACEMENT BANK"); (ii) request one more of the other Banks
38
to acquire and assume all or part of such Affected Bank's Loans and Commitment;
or (iii) designate a Replacement Bank. Any such designation of a Replacement
Bank under clause (i) or (iii) shall be subject to the prior written consent of
the Agent (which consent shall not be unreasonably withheld).
4.09 SURVIVAL. The agreements and obligations of the Company in this
ARTICLE IV shall survive the payment of all other Obligations.
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ARTICLE V
CONDITIONS PRECEDENT
5.01 CONDITIONS OF INITIAL CREDIT EXTENSIONS. The obligation of each
Bank to make its initial Credit Extension hereunder is subject to the condition
that the Agent shall have received on or before the Closing Date all of the
following, in form and substance satisfactory to the Agent and each Bank, and in
sufficient copies for each Bank:
(a) CREDIT AGREEMENT. This Agreement executed by each party
thereto;
(b) EVIDENCE OF ORGANIZATION AND ORGANIZATIONAL ACTION. The
Agent shall have received (in form and substance satisfactory to the
Agent):
(i) A photocopy of an executed copy of the Company
Operating Agreement (including all amendments thereto),
certified by a Responsible Officer of the Company; and the
Company Certificate of Formation (and all amendments thereto),
certified by the Secretary of State of Delaware;
(ii) A certificate, dated the Effective Date,
executed by the Secretary or an Assistant Secretary of the
Company, certifying (with appropriate organizational
resolutions attached thereto): (A) that all organic action
required to be taken by the Company in connection with the
authorization, execution, delivery and performance of this
Agreement and the transactions contemplated hereby and thereby
has been taken and (B) the names and true signatures of its
respective officers authorized to execute, deliver and
perform, as applicable, this Agreement, and all other
documents and notices to be delivered by it hereunder;
(iii) A certificate of a Responsible Officer
addressed to the Agent and the Banks to the effect that the
Responsible Officer is fully authorized to bind the Company to
this Agreement, as provided in the Company Operating Agreement
certifying the names and true signatures of the officers of
the Company authorized to execute, deliver and perform, as
applicable, this Agreement, and all other Loan Documents to be
delivered by it hereunder; and
(iv) a good standing certificate and tax good
standing for the Company from the Secretary of State (or
similar, applicable Governmental Authority) of its state of
formation and each state where the Company is qualified to do
business as a foreign corporation as of a recent date;
(c) LEGAL OPINION. An opinion of McCarter & English, LLP,
counsel to the Company and addressed to the Agent and the Banks,
substantially in the form of EXHIBIT D.
(d) PAYMENT OF FEES. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Closing Date,
40
together with Attorney Costs of BofA to the extent invoiced prior to or
on the Closing Date, plus such additional amounts of Attorney Costs as
shall constitute BofA's reasonable estimate of Attorney Costs incurred
or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude final settling of accounts
between the Company and BofA); including any such costs, fees and
expenses arising under or referenced in SECTIONS 2.10 and 11.04;
(e) CERTIFICATE. (i) A certificate signed by a Responsible
Officer of the Company, dated as of the Closing Date, stating
that:
(A) the representations and warranties
contained in ARTICLE V are true and correct on and as
of such date, as though made on and as of such date;
and
(B) no Default or Event of Default exists or
would result from the Credit Extension;
(ii) a certificate signed by a Responsible Officer of
Genlyte and of Thomas dated the Closing Date stating that
there has occurred since March 31, 1998 no event or
circumstance that has resulted or could reasonably be expected
to result in a Material Adverse Effect with respect to Genlyte
(in the case of Genlyte) or the lighting business of Thomas
(in the case of Thomas).
(f) PAYMENT UNDER EXISTING AGREEMENT. All obligations due and
payable under the Existing Credit Agreement shall have been paid in
full and all obligations thereunder have been terminated except for the
Existing BofA Letters of Credit.
(g) JOINT VENTURE. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that (1) The Genlyte
Group Incorporated has contributed substantially all of its assets to
the Company in exchange for a 68% interest in the Company and the
assumption of substantially all of Genlyte's liabilities, (2) Thomas
Industries Inc. has contributed its lighting assets to the Company in
exchange for a 32% interest in the Company and the assumption of
certain liabilities, (3) all conditions set forth in the Joint Proxy
Statement have been met or waived with the consent of the Required
Banks, (4) all governmental regulatory approvals and shareholders'
approvals have been met and any applicable waiting periods have
expired, and (5) the Effective Date (as defined in the Company
Operating Agreement) shall have occurred simultaneously with the
closing hereunder.
(h) FINANCIAL STATEMENTS. Audited financial statements of
Genlyte and for the lighting business of Thomas for the fiscal year
ended December 31, 1997.
(i) OTHER DOCUMENTS. Such other approvals, opinions, documents
or materials as the Agent or any Bank may reasonably request.
41
5.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Bank
to make any Revolving Loan to be made by it (including its initial Revolving
Loan) and the obligation of the Issuing Bank to Issue any Letter of Credit
(including the initial Letter of Credit) is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) NOTICE, APPLICATION. The Agent shall have received a
Notice of Borrowing or a Notice of Conversion/Continuation, as
applicable or in the case of any Issuance of any Letter of Credit, the
Issuing Bank and the Agent shall have received an L/C Application or
L/C Amendment Application, as required under SECTION 3.02;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE VI shall be true and correct
on and as of such Borrowing Date or Issuance Date with the same effect
as if made on and as of such Borrowing Date or Issuance Date (except to
the extent such representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct as of such
earlier date); and
(c) NO EXISTING DEFAULT. No Default or Event of Default shall
exist or shall result from such Borrowing or Issuance.
Each Notice of Borrowing and L/C Application or L/C Amendment
Application submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the date of
each such notice and as of each Borrowing Date or Issuance Date, as
applicable, that the conditions in this SECTION 5.02 are satisfied.
42
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
6.01 LLC EXISTENCE AND POWER. The Company and each of its Subsidiaries:
(a) is, in the case of the Company, a limited liability
company, and in the case of each Subsidiary, a corporation, in each
case duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the
Loan Documents;
(c) is duly qualified as a foreign limited liability company,
and in the case of each Subsidiary, a corporation and is licensed and
in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and
(d) is in compliance in all material respects with all
Requirements of Law; except, in each case referred to in clause (c) or
clause (d), to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
6.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by the Company and its Subsidiaries of this Agreement and each other
Loan Document to which such Person is party, have been duly authorized by all
necessary organic action, and do not and will not:
(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien (other than Permitted Liens) under, any
document evidencing any material Contractual Obligation to which such
Person is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its property is subject;
or
(c) violate any Requirement of Law in any material respect.
6.03 GOVERNMENT AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company or
any of its Subsidiaries of the Agreement or any other Loan Document.
43
6.04 BINDING EFFECT. This Agreement and each other Loan Document to
which the Company or any of its Subsidiaries is a party constitute the legal,
valid and binding obligations of the Company and any of its Subsidiaries to the
extent it is a party thereto, enforceable against such Person in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
6.05 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending, at law, in equity, in arbitration or before any Governmental
Authority, against the Company, or its Subsidiaries or any of their respective
properties:
(a) which purport to affect or pertain to this Agreement or
any other Loan Document, or any of the transactions contemplated hereby
or thereby; or
(b) which could reasonably be expected to result in liability
for damages in an aggregate amount in excess of 15% of Members' Equity.
No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance
of this Agreement or any other Loan Document, or directing that the
transactions provided for herein or therein not be consummated as
herein or therein provided.
6.06 NO DEFAULT. No Default or Event of Default exists or would result
from the incurring of any Obligations by the Company. As of the Closing Date,
neither the Company nor any Subsidiary is in default under or with respect to
any material Contractual Obligation in any respect which, individually or
together with all such defaults, could reasonably be expected to have a Material
Adverse Effect, or that would, if such default had occurred after the Closing
Date, create an Event of Default under SUBSECTION 9.01(E).
6.07 ERISA COMPLIANCE. Except as specifically disclosed in SCHEDULE
6.07:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter from the IRS and to
the best knowledge of the Company, nothing has occurred which would
cause the loss of such qualification. The Company and each ERISA
Affiliate has made all required contributions to any Plan subject to
Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There
has been no prohibited transaction or violation of the fiduciary
responsibility
44
rules with respect to any Plan which has resulted or could reasonably
be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability which
could reasonably be expected to result in a Material Adverse Effect;
(iii) neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA) which could reasonably be expected to
result in a Material Adverse Effect; (iv) neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan
which could reasonably be expected to result in a Material Adverse
Effect; and (v) neither the Company nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA which could reasonably be expected to result in a Material
Adverse Effect.
6.08 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by SECTION 7.12
and SECTION 8.07. Neither the Company nor any Subsidiary is generally engaged in
the business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock and none of the proceeds of the
Loans shall be used for the purpose of purchasing or carrying Margin Stock.
6.09 TITLE TO PROPERTIES. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. As of
the Closing Date, the property of the Company and its Subsidiaries is subject to
no Liens, other than Permitted Liens.
6.10 TAXES. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would reasonably be expected to have a Material Adverse
Effect.
6.11 FINANCIAL CONDITION.
(a) The pro forma financial statements of the Company and its
Subsidiaries as disclosed in the Joint Proxy Statement were derived
from historical financial statements prepared in accordance with GAAP
consistently applied, except as otherwise expressly noted therein, and
reasonably present the pro forma financial condition of the Company and
its Subsidiaries as of the date thereof (as if the Company then
existed); and
45
(b) Since the dates of the financial statements used to derive
the pro forma historical financial statements of the Company and its
Subsidiaries, there has been no Material Adverse Effect.
6.12 ENVIRONMENTAL MATTERS. The Company conducts in the ordinary course
of business a review of the effect of existing Environmental Laws and existing
Environmental Claims on its business, operations and properties, and as a result
thereof the Company has reasonably concluded that, except as specifically
disclosed in SCHEDULE 6.12, such Environmental Laws and Environmental Claims are
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.13 REGULATED ENTITIES. None of the Company, any Person controlling
the Company, or any Subsidiary, is an "INVESTMENT COMPANY" within the meaning of
the Investment Company Act of 1940. The Company is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, any
state public utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
6.14 NO BURDENSOME RESTRICTIONS. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
6.15 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The Company or
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict in any material
respect with the rights of any other Person. To the knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by the Company
or any Subsidiary infringes upon any rights held by any other Person in any
material respect. Except as specifically disclosed in SCHEDULE 6.15, no claim or
litigation regarding any of the foregoing is pending or to the knowledge of the
Company threatened, and no patent, invention, device, application, principle or
any statute, law, rule, regulation, standard or code is pending or, to the
knowledge of the Company, proposed, which, in either case, could reasonably be
expected to have a Material Adverse Effect.
6.16 SUBSIDIARIES. As of the Closing Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of SCHEDULE
6.16 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of SCHEDULE 6.16.
6.17 INSURANCE. Except as specifically disclosed in SCHEDULE 6.17, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering
46
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Company or such Subsidiary
operates.
6.18 FULL DISCLOSURE. None of the representations or warranties made by
the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company or any Subsidiary in connection with the Loan
Documents (including the offering and disclosure materials delivered by or on
behalf of the Company to the Banks prior to the Closing Date), contains any
untrue statement of a material fact or omits any material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when made
or delivered.
6.19 YEAR 2000. On the basis of the reviews and assessments made by
Genlyte and Thomas of their systems and equipment and inquiry made of the
material suppliers, vendors and customers of Genlyte and Thomas, the Company
reasonably believes that the "Year 2000 problem" (that is, the inability of
computers, as well as embedded microchips in non-computing devices, to perform
properly date-sensitive functions with respect to certain dates prior to and
after December 31, 1999), including costs of remediation, will not result in a
Material Adverse Effect. Genlyte and Thomas are developing and the Company will
continue to develop feasible contingency plans which can and will be used by the
Company to adequately ensure uninterrupted and unimpaired business operation in
the event of failure of its own or a third party's systems or equipment due to
the Year 2000 problem, including those of vendors, customers, and suppliers, as
well as a general failure of or interruption in its communications and delivery
infrastructure.
6.20 SECURITY INTERESTS. (a) Upon the execution and delivery of the
Security Agreement and completion of the filings under the Uniform Commercial
Code, the security interests created pursuant to the Collateral Documents will
constitute a valid first priority security interest in the Collateral described
therein securing the Obligations (subject only to Permitted Liens and matters
disclosed in SCHEDULE 6.20 and to such qualifications and exceptions as are
contained in the Uniform Commercial Code with respect to the priority of
security interests perfected by means other than the filing of a financing
statement or with respect to the creation of security interests in the property
to which the Uniform Commercial Code does not apply) and all action necessary to
perfect the security interests so created.
(b) Upon the execution and delivery of the Pledge Agreement
and delivery of the Pledged Shares thereunder, the security interests created
pursuant to the Collateral Documents will constitute a valid first priority
security interest in the Pledged Collateral and upon delivery of the Pledged
Collateral to the Agent all action necessary to perfect the security interest so
created has been taken and completed.
47
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Majority Banks waive compliance in writing:
7.01 FINANCIAL STATEMENTS. The Company shall deliver to the Agent, in
form and detail satisfactory to the Agent and the Majority Banks, with
sufficient copies for each Bank:
(a) as soon as available, but not later than 90 days after the
end of each fiscal year, a copy of the audited consolidated balance
sheet of the Company and its Subsidiaries as at the end of such year
and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
and accompanied by the opinion of a nationally-recognized independent
public accounting firm ("INDEPENDENT AUDITOR") which report shall state
that such consolidated financial statements present fairly the
financial position for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years; PROVIDED, THAT, for the
purpose of the report for the period ending December 31, 1998, the
period covered shall include only the period from the Closing Date
until December 31, 1998. Such opinion shall not be (i) qualified for a
going concern, or (2) qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material portion
of the Company's or any Subsidiary's records, and shall be delivered to
the Agent pursuant to a reliance agreement between the Agent and Banks
and such Independent Auditor in form and substance satisfactory to the
Agent;
(b) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year
(commencing with the fiscal quarter ended September 30, 1998), a copy
of the unaudited consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the
period commencing on the first day and ending on the last day of such
quarter, and certified by a Responsible Officer as fairly presenting,
in accordance with GAAP (subject to year-end audit adjustments), the
financial position and the results of operations of the Company and the
Subsidiaries.
7.02 CERTIFICATES; OTHER INFORMATION. The Company shall furnish to the
Agent, with sufficient copies for each Bank:
(a) (i) concurrently with the delivery of the financial
statements referred to in SUBSECTION 7.01(A), a certificate of
the Independent Auditor stating that in making the examination
necessary therefor no knowledge was obtained of any Default or
Event of Default; and
(ii) concurrently with the delivery of the financial
statements referred to in subsection 7.01(b), a certificate of
the chief financial officer stating that the
48
computations set forth in the Compliance Certificate delivered
pursuant to SECTION 7.02(B) with respect to the distributions
permitted under SECTION 8.10(C) or (F) are in conformity with
the Code as in effect on such date.
(b) concurrently with the delivery of the financial statements
referred to in SUBSECTIONS 7.01(A) and (B), a Compliance Certificate
executed by a Responsible Officer;
(c) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any
Subsidiary as the Agent, at the request of any Bank, may from time to
time reasonably request.
7.03 NOTICES. The Company shall promptly notify the Agent and each
Bank:
(a) of the occurrence of any Default or Event of Default, and
of the occurrence or existence of any event or circumstance that
reasonably foreseeably will become a Default or Event of Default;
(b) of any matter that has resulted or is reasonably expected
to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of
the Company or any Subsidiary; (ii) any material dispute, litigation,
investigation, proceeding or suspension between the Company or any
Subsidiary and any Governmental Authority; or (iii) the commencement
of, or any material development in, any material litigation or
proceeding affecting the Company or any Subsidiary; including pursuant
to any applicable Environmental Laws;
(c) of the occurrence of any of the following events affecting
the Company or any ERISA Affiliate (but in no event more than 30 days
after such event), and deliver to the Agent and each Bank a copy of any
notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the
Company or any ERISA Affiliate with respect to such event:
(i) an ERISA Event which could reasonably be expected
to have a Material Adverse Effect;
(ii) the Unfunded Pension Liability of any Pension
Plan shall increase in a manner which could reasonably be
expected to have a Material Adverse Effect;
(iii) the adoption of, or the commencement of
contributions to, any material Plan subject to Section 412 of
the Code by the Company or any ERISA Affiliate; or
(iv) the adoption of any amendment to any material
Plan subject to Section 412 of the Code, if such amendment
results in a material increase in contributions or Unfunded
Pension Liability.
49
(d) of any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated
Subsidiaries; and
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto and at what time. Each
notice under SUBSECTION 7.03(A) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document that have been
(or reasonably foreseeably will be) breached or violated.
7.04 PRESERVATION OF EXISTENCE, ETC. The Company shall, and shall cause
each Subsidiary to: (a) preserve and maintain in full force and effect its
existence and good standing under the laws of its state or jurisdiction of
incorporation;
(b) preserve and maintain in full force and effect all
material governmental rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the normal conduct of
its business except in connection with transactions permitted by
SECTION 8.03 and sales of assets permitted by SECTION 8.02;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
7.05 MAINTENANCE OF PROPERTY. The Company shall maintain, and shall
cause each Subsidiary to maintain, and preserve all its material property which
is used or useful in its business in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect and except as permitted by SECTION
8.02. The Company and each Subsidiary shall use the standard of care typical in
the industry in the operation and maintenance of its facilities.
7.06 INSURANCE. The Company shall maintain, and shall cause each
Material Subsidiary to maintain, with financially sound and reputable
independent insurers, insurance with respect to its material properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons.
7.07 PAYMENT OF OBLIGATIONS. The Company shall, and shall cause each
Material Subsidiary to, pay and discharge as the same shall become due and
payable, all their respective obligations and liabilities, including all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
50
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary.
7.08 COMPLIANCE WITH LAWS. The Company shall comply, and shall cause
each Subsidiary to comply, in all material respects with all Requirements of Law
of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist and except
where non-compliance is not reasonably expected to have a Material Adverse
Effect.
7.09 COMPLIANCE WITH ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code except where non-compliance is not
reasonably expected to have a Material Adverse Effect.
7.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Agent or any Bank to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants and at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, HOWEVER, when an Event
of Default exists the Agent or any Bank may do any of the foregoing at the
expense of the Company at any time during normal business hours and without
advance notice.
7.11 ENVIRONMENTAL LAWS. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws except where the failure to comply is not
expected to have a Material Adverse Effect.
7.12 USE OF PROCEEDS. The Company shall use the proceeds of the Loans
for working capital and other general corporate purposes or an Acquisition not
in contravention of any Requirement of Law or of any Loan Document or for
distributions and redemptions contemplated by the Operating Agreement and
permitted by this Agreement.
7.13 FURTHER ASSURANCES. (a) If there shall exist any actions, suits,
proceedings, claims or disputes pending, at law, in equity, in arbitration or
before any Governmental Authority, against the Company, or its Subsidiaries or
any of their respective properties:
(i) which purport to affect or pertain to this
Agreement or any other Loan Document, or any of the
transactions contemplated hereby or thereby; or
51
(ii) which, if determined adversely to the Company,
could result in liability for damages in an aggregate amount
in excess of 15% of Members' Equity;
then the Company shall promptly notify the Agent of any such actions, suits,
proceedings, claims or disputes and, at the request of the Majority Banks, the
Company shall (x) pledge or assign to the Agent pursuant to the Pledge Agreement
such stock or partnership interests and, in the case of stock, deliver the
certificates evidencing such stock, together with undated stock powers executed
in blank to the Agent, and (y) grant to the Agent an interest in all Collateral
pursuant to the Security Agreement, execute and deliver to the Agent such
Collateral Documents as are appropriate therefor as requested by the Agent that
creates a Lien thereon securing the Obligations subject in priority only to
Permitted Liens existing thereon prior to such acquisition (and not done in
contemplation thereof), in each case together with such other documentation,
including one or more opinions of counsel satisfactory to the Agent and the
Majority Banks which in their reasonable opinion is appropriate.
(b) The Company agrees that each action required above by this Section
7.13 shall be completed as soon as possible but in no event later than 15 days
after such action is requested to be taken by the Agent or the Majority Banks.
52
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Majority Banks waive compliance in writing:
8.01 LIMITATION ON LIENS. The Company shall not, and shall not suffer
or permit any Subsidiary to, directly or indirectly, make, create, incur, assume
or suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("PERMITTED
LIENS"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth in SCHEDULE 8.01 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document and junior liens
securing the Thomas Note (subordinate to Liens created pursuant to
SECTION 7.13 on subordination terms reasonably acceptable to the
Majority Banks);
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or
to the extent that non-payment thereof is permitted by SECTION 7.07;
PROVIDED THAT no notice of lien has been filed or recorded under the
Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(f) Liens on the property of the Company or its Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, (ii)
contingent obligations on surety and appeal bonds, and (iii) other
non-delinquent obligations of a like nature; in each case, incurred in
the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in
53
amount, and which do not in any case materially detract from the value
of the property subject thereto or interfere with the ordinary conduct
of the businesses of the Company and its Subsidiaries;
(h) purchase money security interests on any property acquired
or held by the Company or its Subsidiaries in the ordinary course of
business, securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such property;
PROVIDED THAT (i) any such Lien attaches to such property concurrently
with or within 20 days after the acquisition thereof, (ii) such Lien
attaches solely to the property so acquired in such transaction, (iii)
the principal amount of the debt secured thereby does not exceed 100%
of the cost of such property, and (iv) the principal amount of the
Indebtedness secured by any and all such purchase money security
interests shall not at any time exceed, together with Indebtedness
permitted under SUBSECTION 8.05(D), 5% of Members' Equity;
(i) Liens securing obligations in respect of import letters of
credit incurred by the Company in the ordinary course of its business;
(j) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; PROVIDED THAT (i) such deposit
account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the FRB, and (ii) such deposit
account is not intended by the Company or any Subsidiary to provide
collateral to the depository institution;
(k) Liens securing capital leases permitted pursuant to
SECTION 8.05(I); and
(l) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by SECTION 8.05(J), PROVIDED THAT (1) such Liens existing at
the time such corporation became a Subsidiary and were not created in
anticipation of the Acquisition, (2) any such Lien does not by its
terms cover any property or assets after the time such Person becomes a
Subsidiary which were not covered immediately prior thereto, and (3)
any such Lien does not by its terms secure any Indebtedness other than
Indebtedness existing immediately prior to the existing time as such
Person becomes a Subsidiary.
8.02 The Company shall not, and shall not suffer or permit any
Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer or
otherwise dispose of (whether in one or a series of transactions) any property
(including accounts and notes receivable, with or without recourse) or enter
into any agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
54
(b) to the Company or a Wholly-Owned Subsidiary so long as no
Default or Event of Default shall have occurred and is continuing;
(c) dispositions not otherwise permitted hereunder which are
made for fair market value; PROVIDED, that (i) at the time of any
disposition, no Event of Default shall exist or shall result from such
disposition, (ii) the aggregate sales price from such disposition shall
be paid in cash, and (iii) the aggregate value of all assets so sold by
the Company and its Subsidiaries, together, shall not exceed in any
fiscal year 5% of Members' Equity.
8.03 CONSOLIDATIONS AND MERGERS. The Company shall not, and shall not
suffer or permit any Subsidiary to, merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions all or substantially all of its assets (whether now owned
or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company; PROVIDED THAT
the Company shall be the continuing or surviving corporation, or with
any one or more Subsidiaries; PROVIDED THAT if any transaction shall be
between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation;
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to the Company or
another Wholly-Owned Subsidiary; and
(c) any Person may merge with a Subsidiary of the Company in
connection with an Acquisition permitted hereunder.
8.04 LOANS AND INVESTMENTS. The Company shall not purchase or acquire,
or suffer or permit any Subsidiary to purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, or any obligations or
other securities of, or any interest in, any Person, or make or commit to make
any acquisitions, or make or commit to make any advance, loan, extension of
credit or capital contribution to or any other investment in, any Person
including any Affiliate of the Company (together, "INVESTMENTS"), except for:
(a) Investments held by the Company or Subsidiary in the form
of cash equivalents or short term marketable securities;
(b) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services
in the ordinary course of business;
(c) extensions of credit by the Company to any of its
Wholly-Owned Subsidiaries or by any of its Wholly-Owned Subsidiaries to
another of its Wholly-Owned Subsidiaries;
(d) Acquisitions by the Company.
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8.05 LIMITATION ON INDEBTEDNESS. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness of the Company incurred pursuant to this
Agreement;
(b) Indebtedness of the Company consisting of Contingent
Obligations permitted pursuant to SECTION 8.08;
(c) Indebtedness of the Company existing on the Closing Date
and set forth in SCHEDULE 8.05;
(d) Indebtedness of the Company secured by Liens permitted by
SUBSECTION 8.01(H) in an aggregate amount outstanding not to exceed 5%
of Members' Equity;
(e) Indebtedness of the Company incurred in connection with
leases permitted pursuant to SECTION 8.09;
(f) Indebtedness of the Company to its Members provided that
any amount in excess of 20% of the Company's Members' Equity, other
than the Thomas Note, must be Subordinated Debt;
(g) Subordinated Debt;
(h) the Thomas Note;
(i) other Indebtedness of the Company and its Subsidiaries not
to exceed $25,000,000; and
(j) Indebtedness of a Person which becomes a Subsidiary after
the date hereof, PROVIDED THAT (i) such Indebtedness existed at the
time such corporation became a Subsidiary and was not created in
anticipation of the Acquisition and (ii) immediately after giving
effect to the Acquisition of such Person by the Company no Default or
Event of Default shall have occurred and be continuing.
8.06 TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall not
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of the Company or such
Subsidiary; provided however that any Indebtedness of the Company to its Members
in excess of 20% of the Company's Members' Equity, other than the Thomas Note,
must be Subordinated Debt.
8.07 USE OF PROCEEDS.
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(a) The Company shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds or any Letter of
Credit, directly or indirectly, (i) to purchase or carry Margin Stock
in violation of Regulation U, (ii) to repay or otherwise refinance
indebtedness of the Company or others incurred to purchase or carry
Margin Stock in violation of Regulation U, (iii) to extend credit for
the purpose of purchasing or carrying any Margin Stock in violation of
Regulation U, or (iv) to acquire any security in any transaction that
is subject to Section 13 or 14 of the Exchange Act.
(b) Other than as contemplated by the Operating Agreement, the
Company shall not, and shall not suffer or permit any Subsidiary to,
purchase or offer to purchase any shares in any corporation or
association or any interest in any other business entity (or to
refinance any Indebtedness incurred for such purpose) if such offer or
purchase is opposed by such entity's board of directors or other
governing body or by shareholders controlling more than 20% of the
voting shares of such entity.
8.08 CONTINGENT OBLIGATIONS. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary
course of business;
(b) Contingent Obligations of the Company and its Subsidiaries
existing as of the Closing Date and listed in SCHEDULE 8.08;
(c) Contingent Obligations with respect to Surety Instruments
incurred in the ordinary course of business and not exceeding at any
time 20% of Members' Equity in respect of the Company and its
Subsidiaries together;
(d) Swap Contracts of the Company; and
(e) Contingent Obligations with respect to Indebtedness of the
Company and its Subsidiaries permitted pursuant to SECTION 8.05(I).
8.09 LEASE OBLIGATIONS. The Company shall not, and shall not suffer or
permit any Subsidiary to, create or suffer to exist any obligations for the
payment of rent for any property under lease or agreement to lease, except for:
(a) leases of the Company and of Subsidiaries in existence on
the Closing Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any
Subsidiary after the Closing Date in the ordinary course of business in
an aggregate amount for all rental payments not to exceed 5% of
Members' Equity;
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(c) leases entered into by the Company or any Subsidiary after
the Closing Date pursuant to sale-leaseback transactions in an
aggregate net present value not to exceed 5% of Members' Equity.
8.10 RESTRICTED PAYMENTS. The Company shall not, and shall not suffer
or permit any Subsidiary to, declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any class of its membership interests, or purchase,
redeem or otherwise acquire for value any shares of its membership interests or
any warrants, rights or options to acquire such membership interests, now or
hereafter outstanding; except that the Company may:
(a) declare and make distributions payable solely as
membership interests;
(b) purchase, redeem or otherwise acquire its members'
interests or warrants or options to acquire any such interests with the
proceeds received from the substantially concurrent issue of new
membership interests;
(c) declare or pay Tax Dividends to each Member (including
transferees not prohibited under this Agreement);
(d) permit any Subsidiary to declare and make dividend
payments payable to the Company;
(e) make any payments required under SECTIONS 10.4(A) and
10.5(A) of the Company Operating Agreement; and
(f) declare or pay cash distributions to the Members
(including transferees not prohibited under this Agreement) equal to
the greater of (i) $9,375,000 annually or (ii) 50% of the Company's
cumulative Net Income since the Closing Date; PROVIDED THAT there is no
Default or Event of Default.
8.11 CHANGE IN BUSINESS. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
8.12 ACCOUNTING CHANGES. The Company shall not, and shall not suffer or
permit any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
the Company or of any Subsidiary.
8.13 FINANCIAL COVENANTS. The Company shall not:
(a) permit its ratio of consolidated Indebtedness to
consolidated EBITDA as determined at the end of any fiscal quarter to
be more than 2.50 to 1.00;
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(b) permit its consolidated Coverage Ratio as determined at
the end of any fiscal quarter to be less than 3.00 to 1.00.
8.14 LIMITATION ON OPTIONAL PAYMENTS OF SUBORDINATED DEBT AND
MODIFICATIONS OF RELATED DEBT. The Company shall not:
(a) make any optional payment or prepayment on or redemption,
defeasance or purchase of any Indebtedness (other than Indebtedness
under this Agreement and the Thomas Note), including, without
limitation, the Subordinated Debt, or amend, modify or change, or
consent or agree to any amendment, modification or change to any of the
terms relating to the payment or prepayment or principal of or interest
on, any such Indebtedness, other than any amendment, modification or
change which would extend the maturity or reduce the amount of any
payment of principal thereof or which would reduce the rate or extend
the date for payment of interest thereon; or
(b) amend in any material respect, modify or restate any
provision of the Related Agreements.
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ARTICLE IX
EVENTS OF DEFAULT
9.01 EVENT OF DEFAULT. Any of the following shall constitute an "EVENT
OF DEFAULT":
(a) NON-PAYMENT. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of
any L/C Obligation, or (ii) within two (2) days after the same becomes
due, any interest, fee or any other amount payable hereunder or under
any other Loan Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty
by the Company made or deemed made herein, in any other Loan Document,
or Genlyte or Thomas in any Related Agreement, or which is contained in
any certificate, document or financial or other statement by the
Company or any Responsible Officer, furnished at any time under this
Agreement, or in or under any other Loan Document, is incorrect in any
material respect on or as of the date made or deemed made; or
(c) SPECIFIC DEFAULTS. The Company fails to perform or observe
any term, covenant or agreement contained in any of SECTION 7.03, 7.09
or 7.13, or in ARTICLE VIII; or
(d) OTHER DEFAULTS. The Company or any Subsidiary fails to
perform or observe any other term or covenant contained in this
Agreement or any other Loan Document, and such default shall continue
unremedied for a period of 30 days after the earlier of (i) the date
upon which a Responsible Officer knew or reasonably should have known
of such failure or (ii) the date upon which written notice thereof is
given to the Company by the Agent or any Bank; or
(e) CROSS-DEFAULT. (i) The Company or any Subsidiary (A) fails
to make any payment in respect of any Indebtedness or Contingent
Obligation (other than in respect of Swap Contracts), having an
aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined
or syndicated credit arrangement) of more than $10,000,000 when due
(whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable
grace or notice period, if any, specified in the relevant document on
the date of such failure; or (B) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such
Indebtedness or Contingent Obligation, and such failure continues after
the applicable grace or notice period, if any, specified in the
relevant document on the date of such failure if the effect of such
failure, event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause such Indebtedness to be
declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs
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under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (1) any event of default under such Swap
Contract as to which the Company or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (2) any Termination Event
(as so defined) as to which the Company or any Subsidiary is an
Affected Party (as so defined), and, in either event, the Swap
Termination Value owed by the Company or such Subsidiary as a result
thereof is greater than $10,000,000; or
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any
Material Subsidiary (i) ceases or fails to be solvent, or generally
fails to pay, or admits in writing its inability to pay, its debts as
they become due, subject to applicable grace periods, if any, whether
at stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Material
Subsidiary, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of the
Company's or any Material Subsidiary's properties, and any such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement,
filing or levy; (ii) the Company or any Material Subsidiary admits the
material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) the Company or
any Material Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession
(or agent therefor), or other similar Person for itself or a
substantial portion of its property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of $10,000,000; (ii) the aggregate
amount of Unfunded Pension Liability among all Pension Plans at any
time exceeds $10,000,000; or (iii) the Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of $10,000,000; or
(i) MONETARY JUDGMENTS. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is
entered against the Company or any Material Subsidiary involving in the
aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions, incidents
or conditions, of $25,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 20
days after the entry thereof; or
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(j) NON-MONETARY JUDGMENTS. Any non-monetary judgment, order
or decree is entered against the Company or any Material Subsidiary
which does or would reasonably be expected to have a Material Adverse
Effect, and there shall be any period of 20 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(k) CHANGE OF CONTROL. There occurs any Change of Control; or
(l) COLLATERAL. To the extent applicable (i) any security
interest or Lien granted pursuant to the Security Agreement or the
Pledge Agreement shall (except in accordance with its terms), in whole
or in material part, terminate, cease to be effective or cease to be
the legally valid, binding and enforceable obligation of the Company or
other obligor party thereto; (ii) the Company or any other Person
shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability and, with
respect to any such other Person, such contest shall have a reasonable
likelihood of being material and adverse to the interests of the Banks;
or (iii) any representation or warranty made by the Company in Section
3.6 of the Security Agreement or Section 3.2 of the Pledge Agreement
shall prove to be incorrect when made in any respect; or
(m) RELATED AGREEMENTS. The Company shall default in any
material respect under the terms contained in any of the Related
Agreements after any applicable period for a cure.
9.02 REMEDIES. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans and any
obligation of the Issuing Bank to Issue Letters of Credit to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing
under any outstanding Letters of Credit (whether or not any beneficiary
shall have presented, or shall be entitled at such time to present, the
drafts or other documents required to draw under such Letters of
Credit) to be immediately due and payable, and declare the unpaid
principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or
applicable law;
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PROVIDED, HOWEVER, that upon the occurrence of any event specified in SUBSECTION
(F) or (G) of SECTION 9.01 (in the case of clause (i) of SUBSECTION (G) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans and any obligation of the Issuing Bank to Issue Letters of Credit
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Agent, the Issuing Bank or any Bank.
9.03 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE X
THE AGENT
10.01 APPOINTMENT AND AUTHORIZATION; "AGENT".
(a) Each Bank hereby irrevocably (subject to SECTION 10.09)
appoints, designates and authorizes the Agent to take such action on
its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly
set forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise
exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "AGENT" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) The Issuing Bank shall act on behalf of the Banks with
respect to any Letters of Credit Issued by it and the documents
associated therewith until such time and except for so long as the
Agent may agree at the request of the Majority Lenders to act for such
Issuing Bank with respect thereto; PROVIDED, HOWEVER, that the Issuing
Bank shall have all of the benefits and immunities (i) provided to the
Agent in this ARTICLE X with respect to any acts taken or omissions
suffered by the Issuing Bank in connection with Letters of Credit
Issued by it or proposed to be Issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as
fully as if the term "AGENT", as used in this ARTICLE X, included the
Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the Issuing
Bank.
10.02 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.03 LIABILITY OF AGENT. None of the Agent-Related Persons shall (i)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross
64
negligence or willful misconduct), or (ii) be responsible in any manner to any
of the Banks for any recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of the Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect any Collateral, the
properties, books or records of the Company or any of the Company's Subsidiaries
or Affiliates.
10.04 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent accountants and
other experts selected by the Agent. The Agent shall be fully justified
in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or
concurrence of the Majority Banks as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Majority Banks and such
request and any action taken or failure to act pursuant thereto shall
be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in SECTION 5.01, each Bank that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the Agent
to such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Bank.
10.05 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Banks, unless the Agent shall
have received written notice from a Bank or the Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "NOTICE OF DEFAULT". The Agent will notify the Banks of its receipt
of any such notice. The Agent shall take such action with respect to such
Default or Event of Default as may be requested by the
65
Majority Banks in accordance with ARTICLE IX; PROVIDED, HOWEVER, that unless and
until the Agent has received any such request, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Banks.
10.06 CREDIT DECISION. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company and its Subsidiaries
hereunder. Each Bank also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly herein required to be
furnished to the Banks by the Agent, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Company which may come into the possession
of any of the Agent-Related Persons.
10.07 INDEMNIFICATION OF AGENT. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do so), pro rata,
from and against any and all Indemnified Liabilities; PROVIDED, HOWEVER, that no
Bank shall be liable for the payment to the Agent-Related Persons of any portion
of such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each Bank
shall reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
10.08 AGENT IN INDIVIDUAL CAPACITY. BofA and its Affiliates may make
loans to, Issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally
66
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Company and its Subsidiaries and Affiliates as though BofA
were not the Agent or the Issuing Bank hereunder and without notice to or
consent of the Banks. The Banks acknowledge that, pursuant to such activities,
BofA or its Affiliates may receive information regarding the Company or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and acknowledge that the
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, BofA shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not the
Agent or the Issuing Bank.
10.09 SUCCESSOR AGENT. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' notice to the Banks. If the
Agent resigns under this Agreement, the Majority Banks shall appoint from among
the Banks a successor agent for the Banks which successor agent shall be
approved by the Company, which approval shall not be unreasonably withheld or
delayed. If no successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with the Banks
and the Company, a successor agent from among the Banks. Upon the acceptance of
its appointment as successor agent hereunder, such successor agent shall succeed
to all the rights, powers and duties of the retiring Agent and the term "AGENT"
shall mean such successor agent and the retiring Agent's appointment, powers and
duties as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this ARTICLE X and SECTIONS 11.04 and
11.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement. If no successor agent has
accepted appointment as Agent by the date which is 30 days following a retiring
Agent's notice of resignation, the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the Majority Banks
appoint a successor agent as provided for above. Notwithstanding the foregoing,
however, BofA may not be removed as the Agent at the request of the Majority
Banks unless BofA shall also simultaneously be replaced as "ISSUING BANK"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to BofA.
10.10 WITHHOLDING TAX
(a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption
from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Bank agrees with and in favor of the Agent, to
deliver to the Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, two properly completed and executed copies of IRS Form
1001 before the payment of any interest in the first calendar
year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid
under this Agreement;
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(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade
or business of such Bank, two properly completed and executed
copies of IRS Form 4224 before the payment of any interest is
due in the first taxable year of such Bank and in each
succeeding taxable year of such Bank during which interest may
be paid under this Agreement; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
Such Bank agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form
1001 and such Bank sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations of the Company to
such Bank, such Bank agrees to notify the Agent of the percentage
amount in which it is no longer the beneficial owner of Obligations of
the Company to such Bank. To the extent of such percentage amount, the
Agent will treat such Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns,
grants a participation in, or otherwise transfers all or part of the
Obligations of the Company to such Bank, such Bank agrees to undertake
sole responsibility for complying with the withholding tax requirements
imposed by Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to
such Bank an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other
documentation required by SUBSECTION (A) of this Section are not
delivered to the Agent, then the Agent may withhold from any interest
payment to such Bank not providing such forms or other documentation an
amount equivalent to the applicable withholding tax imposed by Sections
1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did
not properly withhold tax from amounts paid to or for the account of
any Bank (because the appropriate form was not delivered or was not
properly executed, or because such Bank failed to notify the Agent of a
change in circumstances which rendered the exemption from, or reduction
of, withholding tax ineffective, or for any other reason) such Bank
shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section, together with all
costs and expenses (including
68
Attorney Costs). The obligation of the Banks under this subsection
shall survive the payment of all Obligations and the resignation or
replacement of the Agent.
(f) It is intended that the Company be a third party
beneficiary of the Obligations of the Banks under this Section.
10.11 CO-AGENTS; LEAD MANAGERS. None of the Banks identified on the
facing page or signature pages of this Agreement as a "CO-AGENT" or "LEAD
MANAGER" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Banks as such.
Without limiting the foregoing, none of the Banks so identified as a "CO-AGENT"
or "LEAD MANAGER" shall have or be deemed to have any fiduciary relationship
with any Bank. Each Bank acknowledges that it has not relied, and will not rely,
on any of the Banks so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
10.12 AGENCY PROVISIONS. The Agent, on behalf of all the Banks, shall
hold in accordance with the Loan Documents all items of any collateral or
interests therein received or held by the Agent. Subject to the Agent's and the
Banks' rights to reimbursement for their costs and expenses hereunder (including
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Agent or a Bank),
each Bank shall have an interest in the Banks' interest in the Collateral or
interests therein in the same proportions that the aggregate Obligations owed
such Bank under the Loan Documents bear to the aggregate Obligations owed under
the Loan Documents to all the Banks, without priority or preference among the
Banks.
69
ARTICLE XI
MISCELLANEOUS
11.01 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Banks
(or by the Agent at the written request of the Majority Banks) and the Company
and acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks and the Company and acknowledged
by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to SECTION 9.02 except as
permitted pursuant to SECTION 2.01(B));
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or
other amounts due to the Banks (or any of them) hereunder or under any
other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (iii) below) any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for
the Banks or any of them to take any action hereunder;
(e) amend this Section, or SECTION 2.14, or any provision
herein providing for consent or other action by all Banks; or
(f) release any material portion of the Collateral (except as
otherwise expressly provided in any Loan Document);
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank in addition to the Majority Banks or all
the Banks, as the case may be, affect the rights or duties of the Issuing Bank
under this Agreement or any L/C-Related Document relating to any Letter of
Credit Issued or to be Issued by it, (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Majority Banks or
all the Banks, as the case may be, affect the rights or duties of the Agent
under this Agreement or any other Loan Document, and (iii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed by the
party thereto.
70
11.02 NOTICES
(a) All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, PROVIDED THAT
any matter transmitted by the Company by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the
number specified on SCHEDULE 11.02, and (ii) shall be followed promptly
by delivery of a hard copy original thereof) and mailed, faxed or
delivered, to the address or facsimile number specified for notices on
SCHEDULE 11.02; or, as directed to the Company or the Agent, to such
other address as shall be designated by such party in a written notice
to the other parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, or if
delivered, upon delivery; except that notices pursuant to ARTICLE II,
III or X to the Agent shall not be effective until actually received by
the Agent, and notices pursuant to ARTICLE III to the Issuing Bank
shall not be effective until actually received by the Issuing Bank at
the address specified for the "ISSUING BANK" on the applicable
signature page hereof.
(c) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience
and at the request of the Company. The Agent and the Banks shall be
entitled to rely on the authority of any Person purporting to be a
Person authorized by the Company to give such notice and the Agent and
the Banks shall not have any liability to the Company or other Person
on account of any action taken or not taken by the Agent or the Banks
in reliance upon such telephonic or facsimile notice. The obligation of
the Company to repay the Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure by the Agent and
the Banks to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Agent and the Banks of a
confirmation which is at variance with the terms understood by the
Agent and the Banks to be contained in the telephonic or facsimile
notice.
11.03 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
71
11.04 COSTS AND EXPENSES. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent
and Issuing Bank) within five Business Days after demand (subject to
SUBSECTION 5.01(D)) for all reasonable costs and expenses incurred by
BofA (including in its capacity as Agent and Issuing Bank) in
connection with the development, preparation, delivery, administration
and execution of, and any amendment, supplement, waiver or modification
to (in each case, whether or not consummated), this Agreement, any Loan
Document and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby
and thereby, including reasonable Attorney Costs incurred by BofA
(including in its capacity as Agent and Issuing Bank) with respect
thereto; and
(b) pay or reimburse the Agent, the Arranger and each Bank
within five Business Days after demand (subject to SUBSECTION 5.01(D))
for all costs and expenses (including Attorney Costs) incurred by them
in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any
other Loan Document during the existence of an Event of Default or
after acceleration of the Loans (including in connection with any
"WORKOUT" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
11.05 COMPANY INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Agent-Related Persons, and each Bank and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"INDEMNIFIED PERSON") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including reasonable Attorney Costs but
excluding costs addressed by SECTION 11.04(A) and SECTION 7.10 other than as
provided in the proviso thereto) of any kind or nature whatsoever which may at
any time (including at any time following repayment of the Loans, the
termination of the Letters of Credit and the termination, resignation or
replacement of the Agent or replacement of any Bank) be imposed on, incurred by
or asserted against any such Person in any way relating to or arising out of
this Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this Agreement
or the Loans or Letters of Credit or the use of the proceeds thereof, whether or
not any Indemnified Person is a party thereto (all the foregoing, collectively,
the "INDEMNIFIED LIABILITIES"); PROVIDED, that the Company shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities to the extent resulting from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
11.06 PAYMENT SET ASIDE. To the extent that the Company makes a payment
to the Agent or the Banks, or the Agent or the Banks exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared
72
to be fraudulent or preferential, set aside or required (including pursuant to
any settlement entered into by the Agent or such Bank in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Bank severally agrees to pay to the
Agent upon demand its pro rata share of any amount so recovered from or repaid
by the Agent.
11.07 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Bank.
11.08 ASSIGNMENTS, PARTICIPATIONS, ETC.
(a) Any Bank may, with the written consent of the Company at
all times other than during the existence of an Event of Default and
the Agent and the Issuing Bank, which consents of the Company shall not
be unreasonably withheld, at any time assign and delegate to one or
more Eligible Assignees (PROVIDED THAT no written consent of the
Company, the Agent or the Issuing Bank and no processing fee shall be
required in connection with any assignment and delegation by a Bank to
an Eligible Assignee that is an Affiliate of such Bank) (each an
"ASSIGNEE") all, or any ratable part of all, of the Loans, the
Commitments, the L/C Obligations and the other rights and obligations
of such Bank hereunder, in a minimum amount of $5,000,000; PROVIDED,
HOWEVER, that the Company and the Agent may continue to deal solely and
directly with such Bank in connection with the interest so assigned to
an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to
the Assignee, shall have been given to the Company and the Agent by
such Bank and the Assignee; (ii) such Bank and its Assignee shall have
delivered to the Company and the Agent an Assignment and Acceptance in
the form of EXHIBIT E ("ASSIGNMENT AND ACCEPTANCE") and (iii) the
assignor Bank or Assignee has paid to the Agent a processing fee in the
amount of $3,000.
(b) From and after the date that the Agent notifies the
assignor Bank that it has received (and provided its consent and the
Company has provided any required consents with respect to) an executed
Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Bank under the Loan Documents, and (ii)
the assignor Bank shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Loan Documents.
73
(c) Immediately upon each Assignee's making its processing fee
payment under the Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary
to reflect the addition of the Assignee and the resulting adjustment of
the Commitments arising therefrom. The Commitment allocated to each
Assignee shall reduce such Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial
banks or other financial institutions not Affiliates of the Company (a
"PARTICIPANT") participating interests in any Loans, the Commitment of
that Bank and the other interests of that Bank (the "originating Bank")
hereunder and under the other Loan Documents; PROVIDED, HOWEVER, that
(i) the originating Bank's obligations under this Agreement shall
remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the Company,
the Issuing Bank and the Agent shall continue to deal solely and
directly with the originating Bank in connection with the originating
Bank's rights and obligations under this Agreement and the other Loan
Documents, and (iv) no Bank shall transfer or grant any participating
interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement
or any other Loan Document, except to the extent such amendment,
consent or waiver would require unanimous consent of the Banks as
described in the FIRST PROVISO to SECTION 11.01. In the case of any
such participation, the Participant shall not have any rights under
this Agreement, or any of the other Loan Documents, and all amounts
payable by the Company hereunder shall be determined as if such Bank
had not sold such participation; except that, if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set-off
in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or
any portion of its rights under and interest in this Agreement in favor
of any Federal Reserve Bank in accordance with Regulation A of the FRB
or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
11.09 CONFIDENTIALITY. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information provided to it or on its behalf
by the Company or any Subsidiary, or by the Agent on the Company's or such
Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information other than
in connection with or in enforcement of this Agreement and the other Loan
Documents or in connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Bank, or (ii) was or becomes available on a
non-confidential basis from
74
a source other than the Company, PROVIDED THAT such source is not bound by a
confidentiality agreement with the Company known to the Bank; PROVIDED, HOWEVER,
that any Bank may disclose such information (A) at the request or pursuant to
any requirement of any Governmental Authority to which the Bank is subject or in
connection with an examination of such Bank by any such authority; (B) pursuant
to subpoena or other court process PROVIDED the Company is given prior notice of
such process; (C) when required to do so in accordance with the provisions of
any applicable Requirement of Law PROVIDED the Company is given prior notice of
such process; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Bank or their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Bank's independent auditors and other professional advisors; (G) to any
Participant or Assignee, actual or potential, PROVIDED THAT such Person agrees
in writing to keep such information confidential to the same extent required of
the Banks hereunder; (H) as to any Bank or its Affiliate, as expressly permitted
under the terms of any other document or agreement regarding confidentiality to
which the Company or any Subsidiary is party or is deemed party with such Bank
or such Affiliate; and (I) to its Affiliates.
11.10 SET-OFF. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists and the Loans have been
accelerated, each Bank is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the Company to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Bank to or for the credit or
the account of the Company against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document and although
such Obligations may be contingent or unmatured. Each Bank agrees promptly to
notify the Company and the Agent after any such set-off and application made by
such Bank; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application.
11.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
11.12 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.13 SEVERABILITY. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
75
11.14 NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks, the
Agent and the Agent-Related Persons, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
11.15 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE
AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE COMPANY, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH OF THE COMPANY, THE AGENT AND THE BANKS IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
COMPANY, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY NEW YORK LAW.
11.16 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
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ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
11.17 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Banks and the Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York by their proper and duly authorized
officers as of the day and year first above written.
GENLYTE THOMAS GROUP, LLC
By: /s/ Larry K. Powers
---------------------------------------
Larry K. Powers
Title: President and Chief Executive Officer
S-1
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Steve A. Aronowitz
-----------------------------
Steve A. Aronowitz
Title: Managing Director
S-2
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Issuing Bank
By: /s/ Steve A. Aronowitz
-----------------------------
Steve A. Aronowitz
Title: Managing Director
S-3
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Steve A. Aronowitz
-----------------------------
Steve A. Aronowitz
Title: Managing Director
S-4
THE BANK OF NEW YORK
By: /s/ Edward J. Dougherty III
-----------------------------
Edward J. Dougherty III
Title: Vice President
S-5
FIRST UNION NATIONAL BANK
By: /s/ Gregory B. Wilcox
-----------------------------
Gregory B. Wilcox
Title: Assistant Vice President
S-6
FLEET BANK, N.A.
By: /s/ Lucia D. Gibbons
-----------------------------
Lucia D. Gibbons
Title: Senior Vice President
S-7
HARRIS TRUST AND SAVINGS BANK
By: /s/ Kwang S. Son
-----------------------------
Kwang S. Son
Title: Assistant Vice President
S-8
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Deroy Scott
-----------------------------
Deroy Scott
Title: Vice President
S-9
NBD BANK, N.A.
By: /s/ Randall K. Stephens
-----------------------------
Randall K. Stephens
Title: First Vice President
S-10
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Scott T. Corley
-----------------------------
Scott T. Corley
Title: Vice President
S-11