EXHIBIT 10.2
CREDIT AGREEMENT
Dated as of November 30, 1999
Among
ENTEGRIS, INC.,
as Borrower
and
THE BANKS NAMED HEREIN,
as Banks
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Agent
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................................................1
Section 1.1. Definitions......................................................................................1
ARTICLE II CREDIT FACILITIES.....................................................................................13
Section 2.1. Commitment as to Revolving Facility.............................................................13
Section 2.2. Procedures for Borrowing Under the Revolving Facility...........................................14
Section 2.3. Converting Floating Rate Fundings to Eurodollar Rate Fundings; Procedures.......................14
Section 2.4. Procedures at End of an Interest Period.........................................................15
Section 2.5. Setting and Notice of Rates.....................................................................15
Section 2.6 Commitment to Issue Letters of Credit...........................................................15
Section 2.7. Interest on Obligations.........................................................................20
Section 2.8. Obligation to Repay Advances; Representations...................................................20
Section 2.9. Revolving Notes.................................................................................21
Section 2.10. Interest Due Dates..............................................................................21
Section 2.11. Computation of Interest and Fees................................................................21
Section 2.12. Fees............................................................................................21
Section 2.13. Use of Proceeds.................................................................................22
Section 2.14. Voluntary Reduction or Termination of the Revolving Commitments; Prepayments....................22
Section 2.15. Payments........................................................................................23
Section 2.16. Taxes...........................................................................................24
Section 2.17. Increased Costs; Capital Adequacy; Funding Exceptions...........................................26
Section 2.18. Funding Losses..................................................................................29
Section 2.19. Right of Banks to Fund Through Other Offices....................................................30
Section 2.20. Discretion of Banks as to Manner of Funding.....................................................30
Section 2.21. Conclusiveness of Statements; Survival of Provisions............................................30
ARTICLE III CONDITIONS OF LENDING................................................................................30
Section 3.1. Conditions Precedent to the Initial Borrowing...................................................30
Section 3.2. Conditions Precedent to All Borrowings..........................................................32
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................32
Section 4.1. Corporate Existence and Power; Name; Chief Executive Office.....................................32
Section 4.2. Authorization for Borrowings; No Conflict as to Law or Agreements...............................32
Section 4.3. Legal Agreements................................................................................33
Section 4.4. Subsidiaries....................................................................................33
Section 4.5. Financial Condition; No Adverse Change..........................................................33
Section 4.6. Litigation......................................................................................33
Section 4.7. Regulation U....................................................................................34
Section 4.8. Taxes...........................................................................................34
Section 4.9. Titles and Liens................................................................................34
Section 4.10. Plans...........................................................................................34
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Section 4.11. Default.........................................................................................35
Section 4.12. Environmental Compliance........................................................................35
Section 4.13. Submissions to Banks............................................................................35
Section 4.14. Financial Solvency..............................................................................35
Section 4.15 Year 2000.......................................................................................36
ARTICLE V AFFIRMATIVE COVENANTS..................................................................................36
Section 5.1. Reporting Requirements..........................................................................37
Section 5.2. Books and Records; Inspection and Examination...................................................39
Section 5.3. Compliance with Laws............................................................................39
Section 5.4. Payment of Taxes and Other Claims...............................................................39
Section 5.5. Maintenance of Properties.......................................................................39
Section 5.6. Insurance.......................................................................................40
Section 5.7. Preservation of Corporate Existence.............................................................40
Section 5.8. Fixed Charge Coverage Ratio.....................................................................40
Section 5.9 Leverage Ratio..................................................................................40
Section 5.10 Minimum Net Worth...............................................................................40
Section 5.11 Merger of Fluoroware and Empak into the Borrower................................................41
Section 5.12 Execution of Loan Documentation with Other Senior Unsecured Creditors...........................41
ARTICLE VI NEGATIVE COVENANTS....................................................................................41
Section 6.1. Liens...........................................................................................41
Section 6.2. Indebtedness....................................................................................42
Section 6.3. Guaranties......................................................................................43
Section 6.4. Investments.....................................................................................44
Section 6.5. Restricted Payments.............................................................................45
Section 6.6. Sale or Transfer of Assets; Suspension of Business Operations...................................45
Section 6.7 Restrictions on Issuance and Sale of Subsidiary Stock...........................................46
Section 6.8. Consolidation and Merger; Asset Acquisitions....................................................46
Section 6.9 Sale and Leaseback..............................................................................46
Section 6.10 Subordinated Debt...............................................................................47
Section 6.11. Restrictions on Nature of Business..............................................................47
Section 6.12 Prohibition of Entering into Negative Pledge Arrangements.......................................47
Section 6.13. Accounting......................................................................................47
Section 6.14. Hazardous Substances............................................................................47
ARTICLE VII EVENTS OF DEFAULT; RIGHTS AND REMEDIES...............................................................48
Section 7.1. Events of Default...............................................................................48
Section 7.2. Rights and Remedies.............................................................................50
ARTICLE VIII AGREEMENT AMONG BANKS AND AGENT.....................................................................51
Section 8.1. Authorization; Powers...........................................................................51
Section 8.2. Application of Proceeds.........................................................................51
Section 8.3. Exculpation.....................................................................................52
Section 8.4. Use of the Term "Agent".........................................................................52
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Section 8.5. Reimbursement for Costs and Expenses............................................................53
Section 8.6. Payments Received Directly by Banks.............................................................53
Section 8.7. Indemnification.................................................................................53
Section 8.8. Agent and Affiliates............................................................................54
Section 8.9. Credit Investigation............................................................................54
Section 8.10. Defaults........................................................................................54
Section 8.11. Obligations Several.............................................................................54
Section 8.12. Sale or Assignment; Addition of Banks...........................................................55
Section 8.13. Participation...................................................................................56
Section 8.14. Withholding Tax Exemption.......................................................................56
Section 8.15. Borrower not a Beneficiary or Party.............................................................57
ARTICLE IX MISCELLANEOUS.........................................................................................57
Section 9.1. No Waiver; Cumulative Remedies..................................................................57
Section 9.2. Amendments, Requested Waivers, Etc..............................................................57
Section 9.3. Addresses for Notices, Etc......................................................................58
Section 9.4. Costs and Expenses..............................................................................58
Section 9.5. Indemnity.......................................................................................58
Section 9.6. Execution in Counterparts.......................................................................59
Section 9.7. Governing Law; Jurisdiction; Waiver of Jury Trial...............................................59
Section 9.8. Integration; Inconsistency......................................................................60
Section 9.9. Agreement Effectiveness.........................................................................60
Section 9.10. Advice from Independent Counsel.................................................................60
Section 9.11. Binding Effect; No Assignment by Borrower.......................................................60
Section 9.12. Severability of Provisions......................................................................60
Section 9.13. Headings........................................................................................61
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LIST OF EXHIBITS
Exhibit A Form of Revolving Note
Exhibit B Notice of Borrowing under Revolving Facility
Exhibit C Notice of Conversion to Eurodollar Rate
Exhibit D Notice of Rollover to Eurodollar Rate
Exhibit E Form of Certificate of Chief Financial Officer as to
Annual Financial Statements
Exhibit F Form of Certificate of Chief Financial Officer as to
Fiscal Quarter Financial Statements
Exhibit G Form of Assignment Certificate
LIST OF SCHEDULES
Schedule 2.6 Existing Letters of Credit
Schedule 4.1 Name under which Borrower and its Subsidiaries Have
Done Business
Schedule 4.4 Subsidiaries of the Borrower
Schedule 4.6 Litigation
Schedule 4.10 Description of Pension Plans of the Borrower
Schedule 4.12 Environmental Disclosures of the Borrower
Schedule 6.1 Outstanding Liens of the Borrower and its Subsidiaries
Schedule 6.2 Outstanding Indebtedness of the Borrower and its
Subsidiaries
Schedule 6.3 Outstanding Guaranties of the Borrower and its
Subsidiaries
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CREDIT AGREEMENT
This Credit Agreement is dated as of November 30, 1999, by and
among ENTEGRIS, INC., a Minnesota corporation (the "Borrower"), and each of the
banks appearing on the signature pages hereof, together with such other banks as
may from time to time become a party to this Agreement pursuant to the terms and
conditions of Article VIII hereof (herein collectively called the "Banks" and
individually each called a "Bank"), and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association, in its separate capacity as
administrative agent for itself and all other Banks (in such capacity, the
"Agent").
ARTICLE I
Definitions
Section 1.1. Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in the preamble have the meanings
therein assigned to them;
(b) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP; and
(d) all accounting terms, unless otherwise specified, shall
be deemed to refer to Persons and their Subsidiaries on a consolidated
basis in accordance with GAAP.
"Adjustment Date" has the meaning specified in Section 8.12.
"Advance" means a loan of funds by a Bank to the Borrower under
the Revolving Facility.
"Affiliate" means, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially, or as a
trustee, guardian or other fiduciary, (i) ten percent (10%) or more of a Person
that is publicly held or (ii) fifty percent (50%) or more of a Person that is
privately held, of the stock having ordinary voting power in the election of
directors of such Person, (b) each Person that controls, is controlled by or is
under common control with such Person or (c) each of such Person's, officers,
directors, joint venturers and partners. For purpose of this definition,
"control" of a Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies, whether
through the ownership of voting securities, by contract or
otherwise; provided, however, that the term "Affiliate" shall in no event
include the Agent or a Bank.
"Agent" has the meaning specified in the preamble.
"Agent's Administrative Fee" shall have the meaning specified in
Section 2.12(a).
"Agreement" means this Credit Agreement and all exhibits,
amendments and supplements hereto and all restatements thereof.
"Applicant" has the meaning specified in Section 8.12.
"Assignment Certificate" has the meaning specified in Section
8.12.
"Bank" or "Banks" has the meaning specified in the preamble.
"Base Rate" means the rate of interest publicly announced from
time to time by Norwest as its "base" rate or any similar successor rate, which
rate shall change when and as that same rate or successor rate changes.
"Borrower" has the meaning specified in the preamble.
"Borrowing" means a borrowing by the Borrower under the
Revolving Facility, consisting of the aggregate of all Revolving Advances made
by the Banks to the Borrower pursuant to a request under Section 2.3.
"Business Day" means any day other than a Saturday or Sunday on
which national banks are required to be open for business in Minnesota and in
Illinois, and, in addition, if such day relates to a Eurodollar Rate Funding or
fixing of a Eurodollar Rate, a day on which dealings in U.S. dollar deposits are
carried on in the London interbank eurodollar market.
"Capital Adequacy Rule" has the meaning specified in Section
2.17(b)(ii).
"Capital Adequacy Rule Change" has the meaning specified in
Section 2.17(b)(iii).
"Capitalized Lease Liabilities" of any Person means, with
respect to the applicable Covenant Computation Period, all monetary obligations
of such Person under any leasing or similar arrangement which, in accordance
with GAAP, would be classified as capitalized leases, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Cash Flow Available for Fixed Charges" of any Person means,
with respect to the applicable Covenant Computation Period, such Person's
Pre-Tax Earnings, plus Interest
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Expense of such Person during such Covenant Computation Period, plus such
Person's rental expenses with respect to operating leases during such Covenant
Computation Period.
"Change of Control" means, with respect to any corporation,
either (i) the acquisition by any "person" or "group" (as those terms are used
in Sections 13(d) and 14(d) of the Exchange Act) of beneficial ownership (as
defined in Rules 13d-3 and 13d-4 of the Securities and Exchange Commission,
except that a Person shall be deemed to have beneficial ownership of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 50% or more of the then-outstanding voting capital stock of such
corporation; or (ii) a change in the composition of the board of directors of
such corporation or any corporate parent of such corporation such that
continuing directors cease to constitute more than 50% of such board of
directors. As used in this definition, "continuing directors" means, as of any
date, (i) those members of the board of directors of the applicable corporation
who assumed office prior to such date, and (ii) those members of the board of
directors of the applicable corporation who assumed office after such date and
whose appointment or nomination for election by that corporation's shareholders
was approved by a vote of at least 50% of the directors of such corporation in
office immediately prior to such appointment or nomination.
"Closing Date" means the date of this Agreement.
"Commitment Fee" has the meaning specified in Section 2.12(b).
"Commitment Fee Percentage" means, as of the date of
determination, the percentage set forth in the table below opposite the
applicable range of the ratio of Total Funded Debt to EBITDA of the Borrower and
its Subsidiaries as of such date of determination; provided, however, in no
event shall the Commitment Fee Percentage be less than 0.250% during the period
from the Closing Date through May 31, 2000. Reductions and increases in the
Commitment Fee Percentage will be verified by the Agent upon receipt of the
financial statements of the Borrower and its Subsidiaries and related compliance
certificate as required under Section 5.1(b) of this Agreement. The ratio will
be determined on the basis of a rolling four quarter calculation of the ratio of
Total Funded Debt to EBITDA as of the last day of the most recent quarter-end
reflected in the most recent financial statements delivered by the Borrower for
the Borrower and its Subsidiaries under Section 5.1(b). Any reduction or
increase in the Commitment Fee Percentage will become effective on the first day
of the first month following the applicable Quarterly Financial Statement Due
Date. If the Borrower fails to deliver the financial statements of the Borrower
and its Subsidiaries and/or related compliance certificate required under
Section 5.1(b) on or before the applicable Quarterly Financial Statement Due
Date, the Borrower and its Subsidiaries shall be deemed to have a ratio of Total
Funded Debt to EBITDA for such quarter of more than 2.50 to 1.00, and the
Commitment Fee Percentage will be 0.350% beginning on the first day of the first
month following such Quarterly Financial Statement Due Date and will continue as
such until the Borrower delivers the financial statements of the Borrower and
its Subsidiaries for the next fiscal quarter in accordance with Section 5.1(b).
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Ratio of Total Funded Commitment Fee
Debt to EBITDA Percentage
-----------------------------------------------------------------
* 2.50/1.00 0.350%
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* 2.00/1.00 to ** 2.50/1.00 0.300%
-----------------------------------------------------------------
* 1.00/1.00 to ** 2.00/1.00 0.250%
-----------------------------------------------------------------
** 1.00/1.00 0.200%
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* - less than or equal
** - greater than
"Covenant Computation Date" means the last day of each fiscal
quarter of the Borrower, commencing with the fiscal quarter ending on November
27, 1999.
"Covenant Computation Period" means the twelve (12) consecutive
calendar months immediately preceding and ending on a Covenant Computation Date.
"Debt" of any Person means, without duplication (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes, reimbursement agreements, recourse
agreements or other similar instruments, (c) all obligations of such Person to
pay the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, (d) all Capitalized Lease
Liabilities of such Person, (e) all debt of others secured by a lien on any
asset of such Person, whether or not such debt is assumed by such Person, (f)
all debt of others guaranteed by such other Person, (g) all obligations of such
Person to pay a specified purchase price for goods or services, whether or not
delivered or accepted (i.e., take-or-pay and similar obligations), (h) all
obligations of such Person under any interest rate swap program or any similar
agreement, arrangement or undertaking relating to fluctuations in interest rates
and (i) all obligations of such Person to advance funds to, or purchase assets,
property or services from, any other Person in order to maintain the financial
condition of such Person and (j) all obligations of such Person under a letter
of credit reimbursement agreement with respect to letters of credit issued
thereunder.
"Default" means an event that, with giving of notice or passage
of time or both, would constitute an Event of Default.
"Default Percentage" means, as to any Bank, a fraction
determined as of the termination of the Revolving Commitments following the
occurrence of an Event of Default, the numerator of which equals the principal
amount of all Obligations owed to such Bank on such date and the denominator of
which equals the principal amount of all Obligations owed to all Banks on such
date.
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"Default Rate" shall have the meaning specified in Section
2.7(c).
"EBITDA" of a Person means, with respect to the applicable
Covenant Computation Period, such Person's Pre-Tax Earnings plus its Interest
Expense and Non-Cash Charges.
"Empak" means Empak, Inc., a Minnesota corporation, which is a
wholly-owned Subsidiary of the Borrower.
"Environmental Laws" has the meaning specified in Section 4.12.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Eurodollar Rate" means, with respect to an Interest Period, the
rate obtained by adding (a) the applicable Eurodollar Rate Margin to (b) the
rate obtained by dividing (i) the applicable Eurodollar Base Rate by (ii) a
percentage equal to one (1.00) minus the applicable percentage (expressed as a
decimal) prescribed by the Board of Governors of the Federal Reserve System (or
any successor thereto) for determining the maximum reserve requirements
applicable to Eurodollar Rate Fundings (currently referred to as "Eurocurrency
Liabilities" in Regulation D) or any other maximum reserve requirements
applicable to a member bank of the Federal Reserve System with respect to such
Eurodollar Rate Fundings.
"Eurodollar Rate Advance" means any Advance which bears interest
at a rate determined by reference to a Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to an Interest
Period, the rate per annum equal to the rate (rounded up if necessary to the
nearest one-sixteenth of one percent (1/16%)) determined by the Agent in
accordance with Section 2.6 to be a rate at which U.S. dollar deposits are
offered to major banks in the London interbank eurodollar market for funds to be
made available on the first day of such Interest Period and maturing at the end
of such Interest Period, as determined by the Agent between the opening of
business and 12:00 Noon, Minneapolis, Minnesota time, on the second Business Day
prior to the beginning of such Interest Period.
"Eurodollar Rate Funding" means any Funding which bears interest
at a rate determined by reference to a Eurodollar Rate, including Eurodollar
Rate Advances.
"Eurodollar Rate Margin" means, as of the date of
determination, the percentage set forth in the table below opposite the
applicable range of the ratio of Total Funded Debt to EBITDA of the Borrower and
its Subsidiaries as of such date of determination; provided, however, in no
event shall the Eurodollar Rate Margin be less than 1.500% during the period
from the Closing Date through May 31, 2000. Reductions and increases in the
Eurodollar Rate Margin will be verified by the Agent upon receipt of the
financial statements of the Borrower and its Subsidiaries and related compliance
certificate as
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required under Section 5.1(b) of this Agreement. The ratio will be determined on
the basis of a rolling four quarter calculation of the ratio of Total Funded
Debt to EBITDA as of the last day of the most recent quarter-end reflected in
the most recent financial statements delivered by the Borrower for the Borrower
and its Subsidiaries under Section 5.1(b). Any reduction or increase in the
Eurodollar Rate Margin will become effective on the first day of the first month
following the applicable Quarterly Financial Statement Due Date. If the Borrower
fails to deliver the financial statements of the Borrower and its Subsidiaries
and/or related compliance certificate required under Section 5.1(b) on or before
the applicable Quarterly Financial Statement Due Date, the Borrower and its
Subsidiaries shall be deemed to have a ratio of Total Funded Debt to EBITDA for
such quarter of more than 2.50 to 1.00, and the Eurodollar Rate Margin will be
1.750% beginning on the first day of the first month following such Quarterly
Financial Statement Due Date and will continue as such until the Borrower
delivers the financial statements for the Borrower and its Subsidiaries for the
next fiscal quarter in accordance with Section 5.1(b).
Ratio of Total Funded Eurodollar Rate Spread for
Debt to EBITDA Revolving Advances
------------------------------------------------------------------
* 2.50/1.00 1.750%
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* 2.00/1.00 to ** 2.50/1.00 1.625%
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* 1.00/1.00 to ** 2.00/1.00 1.500%
------------------------------------------------------------------
** 1.00/1.00 1.375%
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* - less than or equal
** - greater than
"Event of Default" has the meaning specified in Section 7.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Letters of Credit" has the meaning specified in
Section 2.6(a).
"Federal Funds Rate" means at any time an interest rate per
annum equal to the weighted average of the rates for overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day for such transactions received by the
Agent from three federal funds brokers of recognized standing selected by it, it
being understood that the Federal Funds Rate for any day which is not a Business
Day shall be the Federal Funds Rate for the next preceding Business Day.
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"Fixed Charge Coverage Ratio" of any Person means, with respect
to the applicable Covenant Computation Date, the ratio of (a) such Person's Cash
Flow Available for Fixed Charges to (b) such Person's Fixed Charge Requirements.
"Fixed Charge Requirements" of any Person means, with respect to
the applicable Covenant Computation Period, without duplication, the sum of (a)
Interest Expense of such Person during such Covenant Computation Period, and (b)
such Person's rental expenses with respect to operating leases during such
Covenant Computation Period.
"Floating Rate" means an annual rate obtained by adding (a) the
applicable Floating Rate Margin to (b) the higher of (i) the Base Rate or (ii)
the Federal Funds Rate plus .50%, which Floating Rate shall change when and as
the Base Rate or Federal Funds, as applicable, changes.
"Floating Rate Advance" means any Advance which bears interest
at a rate determined by reference to the Floating Rate.
"Floating Rate Funding" means any Funding which bears interest
at a rate determined by reference to the Floating Rate, including Floating Rate
Advances.
"Floating Rate Margin" means, as of the date of determination,
the percentage set forth below in the table opposite the applicable range of the
ratio of Total Funded Debt to EBITDA of the Borrower and its Subsidiaries as of
such determination. Reductions and increases in the Floating Rate Margin will be
verified by the Agent upon receipt of the financial statements of the Borrower
and its Subsidiaries and related compliance certificate as required under
Section 5.1(b) of this Agreement. The ratio will be determined on the basis of a
rolling four quarter calculation of the ratio of Total Funded Debt to EBITDA as
of the last day of the most recent quarter-end reflected in the most recent
financial statements delivered by the Borrower for the Borrower and its
Subsidiaries under Section 5.1(b). Any reduction or increase in the Floating
Rate Margin will become effective on the first day of the first month following
the applicable Quarterly Financial Statement Due Date. If the Borrower fails to
deliver the financial statements of the Borrower and its Subsidiaries and/or
related compliance certificate required under Section 5.1(b) on or before the
applicable Quarterly Financial Statement Due Date, the Borrower and its
Subsidiaries shall be deemed to have a ratio of Total Funded Debt to EBITDA for
such quarter of more than 2.50 to 1.00, and the Floating Rate Margin will be
0.125%, beginning on the first day of the first month following such Quarterly
Financial Statement Due Date and will continue as such until the Borrower
delivers the financial statements for the Borrower and its Subsidiaries for the
next fiscal quarter in accordance with Section 5.1(b).
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Ratio of Total Funded
Debt to EBITDA Floating Rate Margin
-------------------------------------------------------------------
* 2.50/1.00 .125%
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* 2.00/1.00 to ** 2.50/1.00 0.000%
-------------------------------------------------------------------
* 1.00/1.00 to ** 2.00/1.00 0.000%
-------------------------------------------------------------------
** 1.00/1.00 0.000%
-------------------------------------------------------------------
* - less than or equal
** - greater than
"Fluoroware" means Fluoroware, Inc., a Minnesota corporation,
which is a wholly-owned Subsidiary of the Borrower.
"Funded Debt" of any Person means all interest bearing Debt
(including, without limitation, Subordinated Debt) of such Person, and shall
include all interest-bearing Debt created, assumed or guaranteed by such Person
either directly or indirectly, including obligations secured by liens upon
property of such Person and upon which such Person customarily pays the
interest, and all Capitalized Lease Liabilities.
"Funding" means a designated portion of outstanding principal
indebtedness evidenced by a Revolving Note which bears interest at a rate
determined by reference to a particular Eurodollar Rate or Floating Rate, as the
case may be.
"GAAP" means generally accepted accounting principles as in
effect from time to time applied on a basis consistent with the accounting
practices applied in the financial statements of the Borrower and its
Subsidiaries referred to in Section 4.5.
"Guarantors" means Fluoroware and Empak.
"Guaranties" means the Guaranties of even date herewith from the
Guarantors in favor of the Agent and the Banks, as the same may be amended,
supplemented or restated from time to time.
"Hazardous Substance" means any asbestos, urea-formaldehyde,
polychlorinated biphenyls, nuclear fuel or material, chemical waste, radioactive
material, explosives, known carcinogens, petroleum products and by-products and
other dangerous, toxic or hazardous pollutants, contaminants, chemicals,
materials or substances listed or identified in, or regulated by, any
Environmental Laws.
"IDRB Financing" means the financing related to the $1,000,000
Variable Rate Demand Industrial Development Refunding Revenue Bonds (Fluoroware,
Inc. Project), City of Chaska, Minnesota.
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"IDRB Letter of Credit" means the Irrevocable Standby Letter of
Credit No. SB 4792 dated October 1, 1986 issued by Norwest in favor of First
Trust Company, Inc. for the account of Fluoroware, as the same is now and may
hereafter be amended from time to time.
"IDRB Letter of Credit Reimbursement Agreement" means the
Standby Letter of Credit and Reimbursement Agreement dated as of October 1,
1986, between Fluoroware and Norwest, as the same is now and may hereafter be
amended from time to time, pursuant to which Norwest issued the IDRB Letter of
Credit.
"Indemnitees" has the meaning specified in Section 9.5.
"Interest Expense" of any Person means, with respect to the
applicable Covenant Computation Period, the total gross interest expense on all
Debt of such Person during such period, and shall in any event include, without
limitation and without duplication, (a) accrued interest (whether or not paid)
on all Debt, (b) the amortization of Debt discounts, (c) the amortization of all
fees payable in connection with the incurrence of Debt to the extent included in
interest expense, and (d) the interest portion of any Capitalized Lease
Expenditure (determined in accordance with GAAP).
"Interest Period" means, relative to any Eurodollar Rate
Funding, the period beginning on (and including) the date on which such
Eurodollar Rate Funding is made, or continued as, or converted into, a
Eurodollar Rate Funding pursuant to Sections 2.3, 2.4 or 2.5 and shall end on
(but exclude) the day which numerically corresponds to such date one (1), two
(2), three (3) or six (6) months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in the relevant notice pursuant to Sections 2.3, 2.4, or
2.5; provided, however, that:
(a) no more than six (6) different Interest Periods may be
outstanding at any one time;
(b) if an Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a month, in which case such Interest Period shall
end on the next preceding Business Day); and
(c) no Interest Period may end later than the Maturity Date.
"Letter of Credit" has the meaning specified in Section 2.6(b).
"Letter of Credit Amount" means the sum of (a) the aggregate
face amount of all issued and outstanding Letters of Credit and (b) amounts
drawn under Letters of Credit for which the Letter of Credit Bank has not been
reimbursed with proceeds of a Borrowing or otherwise.
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"Letter of Credit Bank" means Norwest, in its separate capacity
as issuer of the Letters of Credit for the account of the Borrower pursuant to
Section 2.6.
"Letter of Credit Fee" has the meaning specified in Section
2.6(c).
"Letter of Credit Fee Margin" means, as of the date of
determination, a percentage equal to the applicable Eurodollar Rate Margin in
effect on such date of determination.
"Letter of Credit Sublimit" means Ten Million Dollars
($10,000,000).
"Leverage Ratio" of any Person means, with respect to the
applicable Covenant Computation Date, the ratio of (a) such Person's Funded Debt
to (b) such Person's EBITDA.
"Loan Documents" means this Agreement, the Revolving Notes, the
Guaranties, the Master Agreement for Standby Letters of Credit, all applications
and other agreements relating to the Letters of Credit, and all other loan
documents now or hereafter given by the Borrower or the Guarantors to the Agent
and the Banks in connection with the Obligations of the Borrower under this
Agreement.
"Master Agreement for Standby Letters of Credit" means the
Master Security Agreement for Irrevocable Standby Letters of Credit of even date
herewith from the Borrower in favor of the Letter of Credit Bank, as the same
may be amended or restated from time to time.
"Material Adverse Effect" means, with respect to any event or
circumstance, a material adverse effect on:
(a) the business, financial condition, operations or
prospects of the Borrower and its Subsidiaries taken as a whole on a
consolidated basis;
(b) the ability of the Borrower or any of its Subsidiaries
to perform its obligations under any Loan Document to which it is a
party;
(c) the validity, enforceability or collectibility of any
Loan Document.
"Maturity Date" means November 30, 2002 with respect to the
Revolving Facility.
"Net Income" of a Person means, with respect to the applicable
Covenant Computation Period, such Person's after-tax net income as determined in
accordance with GAAP.
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"Net Worth" of any Person means, with respect to the applicable
Covenant Computation Date, the aggregate capital and retained earnings of such
Person, as determined in accordance with GAAP.
"Non-Cash Charges" of a Person means, with respect to the
applicable Covenant Computation Period, such Person's depreciation,
amortization, deferred taxes and other non-cash charges which have the effect of
reducing Pre-Tax Earnings or Net Income, as the case may be, all as determined
in accordance with GAAP.
"Norwest" means Norwest Bank Minnesota, National Association,
its successors and assigns.
"Obligations" means each and every Debt, liability and other
obligation of every type and description arising under or in connection with any
of the Loan Documents which the Borrower may now or at any time hereafter owe to
a Bank or to the Banks or to the Agent, whether such debt, liability or
obligation now exists or is hereafter created or incurred, whether it is direct
or indirect, due or to become due, absolute or contingent, primary or secondary,
liquidated or unliquidated, or sole, joint, several or joint and several, and
including specifically, but not limited to, all indebtedness, liabilities and
obligations of the Borrower arising under this Agreement or evidenced by the
Revolving Notes.
"Outstanding Obligations" means, as of the date of
determination, the outstanding principal amount of all Obligations.
"Payee" has the meaning specified in Section 2.16.
"Percentage" means, as to any Bank, the percentage set forth
opposite such Bank's signature on the execution pages of this Agreement, or
below such Bank's signature on any Assignment Certificate executed by such Bank,
representing the ratio of such Bank's Revolving Commitment to the Revolving
Commitment Amount.
"Permitted Liens" has the meaning specified in Section 6.1.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" means an employee benefit plan maintained for employees
of either of the Borrower or any Subsidiary of the Borrower and covered by Title
IV of ERISA.
"Pre-Tax Earnings" of any Person means, with respect to the
applicable Covenant Computation Period, such Person's Net Income, plus any
provision for income taxes, all as determined in accordance with GAAP.
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"Quarterly Financial Statement Due Date" means, with respect to
any given fiscal quarter of the Borrower and its Subsidiaries, the day which is
forty-five (45) calendar days after the last day of such fiscal quarter.
"Rate Hedging Obligations" means any and all obligations of the
Borrower and its Subsidiaries, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (a) any
and all agreements, devices or arrangements designed to protect the Borrower or
any Subsidiary from the fluctuations of interest rates, including interest rate
exchange or swap agreements, reverse swap agreements, interest rate cap or
collar protection agreements, and interest rate options, puts and warrants, and
(b) any and all cancellations, buy backs, reversals, terminations or assignments
of any of the foregoing.
"Reportable Event" has the meaning assigned to that term in
Title IV of ERISA, but does not include any such event for which advance
notification to the Pension Benefit Security Corporation is waived under ERISA
or applicable regulations.
"Required Banks" means, at any time, two or more of the Banks
holding at least sixty-six and sixty-seven hundredths percent (66.67%) of the
Revolving Commitments, or, if the Revolving Commitments have been terminated or
have expired, two or more of the Banks having at least sixty-six and sixty-seven
hundredths percent (66.67%) of the Outstanding Obligations.
"Required Net Worth Amount" has the meaning specified in Section
5.11.
"Required Payment" has the meaning specified in Section 2.15(c).
"Return" has the meaning specified in Section 2.17(b)(i).
"Revolving Advance" means a loan of funds by a Bank to the
Borrower under the Revolving Facility, including both Floating Rate Advances and
Eurodollar Rate Advances made thereunder.
"Revolving Commitment" means, with respect to each Bank, the
amount of the Revolving Commitment set forth opposite such Bank's name on the
execution pages of this Agreement, or below such Bank's signature on an
Assignment Certificate executed by such Bank, unless such amount is reduced
pursuant to Section 2.14(a) hereof, in which event it means the amount to which
said amount is reduced pursuant thereto, or as the context may require, the
obligation of such Bank to make Revolving Advances, as contemplated in Section
2.1.
"Revolving Commitment Amount" shall mean Thirty Million Dollars
($30,000,000), being the maximum amount of the Revolving Commitments of all
Banks, in
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the aggregate, to make Revolving Advances to the Borrower pursuant to Section
2.1, subject to reduction in accordance with Section 2.14(a).
"Revolving Commitment Termination Date" means the earlier of (a)
the Maturity Date with respect to the Revolving Facility or (b) the date on
which the Revolving Commitments are terminated pursuant to Section 7.2 or
reduced to zero pursuant to Section 2.14(a).
"Revolving Facility" means the revolving credit facility being
made available to the Borrower by the Banks pursuant to Section 2.1.
"Revolving Facility Outstanding Amount" means, as of the date of
determination, the sum of (a) the aggregate principal amount of all outstanding
Revolving Advances and (b) the Letter of Credit Amount.
"Revolving Note" means a promissory note of the Borrower payable
to a Bank in the amount of such Bank's Revolving Commitment, in substantially
the form of Exhibit A (as such promissory note may be amended, extended or
otherwise modified from time to time), evidencing the aggregate indebtedness of
the Borrower to such Bank resulting from such Bank's Percentage of each
Borrowing under the Revolving Facility, and also means each promissory note
accepted by such Bank from time to time in substitution therefor or in renewal
thereof.
"Subordinated Debt" means the Debt of the Borrower and its
Subsidiaries which is subordinated in right of payment, in writing, on terms
satisfactory to the Banks, to all indebtedness of the Borrower and its
Subsidiaries to the Bank.
"Subsidiary" of a Person means any corporation, limited
liability company, partnership or other entity of which more than fifty percent
(50%) of the outstanding equity or membership interests or shares of capital
stock having general voting power under ordinary circumstances to elect a
majority of the board of directors (or other governing body) of such entity,
(irrespective of whether or not at the time stock or membership interests of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more Subsidiaries of such Person, or by
one or more other Subsidiaries of such Person.
"Taxes" has the meaning specified in Section 2.16.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the state designated in Section 9.7 (a) as the state whose laws shall
govern this Agreement, or in any other state whose laws are held to govern this
Agreement or any portion hereof.
"Year 2000 Compliant" has the meaning specified in Section 5.8.
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ARTICLE II
CREDIT FACILITIES
Section 2.1. Commitment as to Revolving Facility. Each Bank
hereby agrees, on the terms and subject to the conditions herein set forth, to
make Revolving Advances to the Borrower from time to time during the period from
the date hereof to and including the Revolving Commitment Termination Date, in
an aggregate amount at any time outstanding not to exceed such Bank's Percentage
of each Borrowing from time to time requested by the Borrower under the
Revolving Facility; provided, however, that (a) the Revolving Facility
Outstanding Amount shall at no time exceed the Revolving Commitment Amount and
(b) no Bank's Percentage of the Revolving Facility Outstanding Amount shall at
any time exceed such Bank's Revolving Commitment. Within the above limits, the
Borrower may obtain Revolving Advances, prepay Revolving Advances in accordance
with the terms hereof and reborrow Revolving Advances in accordance with the
applicable terms and conditions of this Article II.
Section 2.2. Procedures for Borrowing Under the Revolving
Facility. Each Borrowing under the Revolving Facility shall be funded by the
Banks as either Floating Rate Advances or Eurodollar Rate Advances, as the
Borrower shall specify in the related notice of proposed Borrowing. Floating
Rate Advances and Eurodollar Rate Advances may be outstanding at the same time.
It is understood, however, that (i) in the case of a Borrowing which is to bear
interest at a Floating Rate, the principal amount of the Borrowing shall be in
an amount equal to or greater than $500,000 or a higher integral multiple of
$100,000 and (ii) in the case of a Borrowing which is to bear interest at a
Eurodollar Rate, the principal amount of the Borrowing shall be in an amount
equal to $1,000,000 or a higher integral multiple of $100,000. The Borrower
shall give notice to the Agent of each proposed Borrowing not later than 10:00
a.m., Minneapolis, Minnesota time, on a Business Day which, in the case of a
Borrowing that is to bear interest initially at a Floating Rate, is the proposed
date of such Borrowing or, in the case of a Borrowing that is to bear interest
initially at a Eurodollar Rate, is at least two (2) Business Days prior to the
proposed date of such Borrowing. Each such notice shall be effective upon
receipt by the Agent, shall be in writing or by telephone or telecopy
transmission, to be confirmed in writing by the Borrower if so requested by the
Agent (in the form of Exhibit B), and shall specify whether the Borrowing is to
bear interest initially at a Floating Rate or a Eurodollar Rate, and in the case
of a Borrowing that is to bear interest initially at a Eurodollar Rate, shall
specify the Interest Period to be applicable thereto. Promptly upon receipt of
such notice (but in no event later than 12:00 Noon, Minneapolis, Minnesota time,
with respect to a Floating Rate Advance, and the close of business, with respect
to a Eurodollar Rate Advance, in each case on the Business Day of receipt of
such notice), the Agent shall advise each Bank of the proposed Borrowing. At or
before 2:00 p.m., Minneapolis, Minnesota time, on the date of the requested
Borrowing, each Bank shall provide the Agent at the principal office of the
Agent in Minneapolis, Minnesota with immediately available funds covering such
Bank's Percentage of such Borrowing. Subject to satisfaction of the conditions
precedent set forth in Article III with respect to such
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Borrowing, the Agent shall pay over such funds to the Borrower prior to the
close of business on the date of the requested Borrowing.
Section 2.3. Converting Floating Rate Fundings to Eurodollar
Rate Fundings; Procedures. So long as no Default or Event of Default shall
exist, the Borrower may convert all or any part of any outstanding Floating Rate
Funding into a Eurodollar Rate Funding by giving notice to the Agent of such
conversion not later than 10:00 a.m., Minneapolis, Minnesota time, on a Business
Day which is at least two (2) Business Days prior to the date of the requested
conversion. Each such notice shall be irrevocable, shall be effective upon
receipt by the Agent, shall be in writing or by telephone or telecopy
transmission, to be confirmed in writing by the Borrower if so requested by the
Agent (in the form of Exhibit C), shall specify the date and amount of such
conversion, the total amount of the Funding to be so converted and the Interest
Period therefor. Each conversion of a Funding shall be on a Business Day, and
the aggregate amount of each such conversion of a Floating Rate Funding to a
Eurodollar Rate Funding shall be in an amount equal to $1,000,000 or a higher
integral multiple of $100,000.
Section 2.4. Procedures at End of an Interest Period. Unless
the Borrower requests a new Eurodollar Rate Funding in accordance with the
procedures set forth below, or prepay the principal of an outstanding Eurodollar
Rate Funding at the expiration of an Interest Period, each Bank shall
automatically and without request of the Borrower convert each Eurodollar Rate
Funding to a Floating Rate Funding on the last day of the relevant Interest
Period. So long as no Default or Event of Default shall exist, the Borrower may
cause all or any part of any outstanding Eurodollar Rate Funding to continue to
bear interest at a Eurodollar Rate after the end of the then applicable Interest
Period by notifying the Agent not later than 10:00 a.m., Minneapolis, Minnesota
time, on a Business Day which is at least two (2) Business Days prior to the
first day of the new Interest Period. Each such notice shall be in writing or by
telephone or telecopy transmission, to be confirmed in writing by the Borrower
if so requested by the Agent (in the form of Exhibit D), shall be irrevocable,
effective when received by the Agent, and shall specify the first day of the
applicable Interest Period, the amount of the expiring Eurodollar Rate Funding
to be continued and the Interest Period therefor. Each new Interest Period shall
begin on a Business Day and the amount of each Funding bearing a new Eurodollar
Rate shall be in an amount equal to $1,000,000 or a higher integral multiple of
$100,000.
Section 2.5. Setting and Notice of Rates. The applicable
Eurodollar Rate for each Interest Period shall be determined by the Agent on the
second Business Day prior to the beginning of such Interest Period, whereupon
notice thereof (which may be by telephone) shall be given by the Agent to the
Borrower and each Bank. Each such determination of the applicable Eurodollar
Rate shall be conclusive and binding upon the parties hereto, in the absence of
demonstrable error. The Agent, upon written request of the Borrower or any Bank,
shall deliver to the Borrower or such requesting Bank a statement showing the
computations used by the Agent in determining the applicable Eurodollar Rate
hereunder.
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Section 2.6 Commitment to Issue Letters of Credit. The Letter
of Credit Bank agrees, from the date hereof to and including the Revolving
Commitment Termination Date, to issue one or more standby letters of credit for
the account of the Borrower, and the Banks agree to participate in the risk of
such letters of credit issued for the account of the Borrower hereunder, on the
terms and subject to the conditions set forth below:
(a) The Letter of Credit Bank has issued for the account of
Fluoroware the letters of credit identified on Schedule 2.6 attached
hereto, which are presently outstanding with amounts available for
drawing and expiry dates as set forth in Schedule 2.6 (the "Existing
Letters of Credit"). Upon the execution and delivery of the Agreement by
the Borrower, the Borrower hereby irrevocably assumes the obligations of
reimbursement and all other obligations of Fluoroware with respect to
the Existing Letters of Credit and such obligations of the Borrower
shall be evidenced by the Master Agreement for Standby Letters of
Credit.
(b) Each Existing Letter of Credit and each new letter of
credit issued pursuant to this Section 2.6, shall be referred to herein
as a "Letter of Credit". Notwithstanding anything in the foregoing to
the contrary, no Letter of Credit shall be issued by the Letter of
Credit Bank if, after giving effect to the issuance of such Letter of
Credit, (i) the Letter of Credit Amount shall exceed the Letter of
Credit Sublimit or (ii) the Revolving Facility Outstanding Amount shall
exceed the Revolving Commitment Amount. The expiration date of any
Letter of Credit shall not be later than thirty (30) days prior to the
Revolving Commitment Termination Date. Each Letter of Credit will be
issued upon no less than five (5) Business Days' prior written
application from the Borrower to the Letter of Credit Bank. The
application requesting issuance of a Letter of Credit shall be on the
Letter of Credit Bank's standard form or such other form as may be
agreed to by the Letter of Credit Bank and the Borrower. In the event
that any of the terms of such application are inconsistent with the
terms and provisions of this Agreement, the terms and provisions of this
Agreement shall govern. The Letter of Credit Bank shall not be obligated
to issue a Letter of Credit unless on the date of issuance all
applicable conditions precedent specified in Article III shall have been
satisfied as fully as if the issuance of such Letter of Credit were a
Revolving Advance. Promptly after issuance of a Letter of Credit
pursuant hereto, the Agent shall so advise each Bank of all relevant
information with respect thereto.
(c) The Borrower agrees to pay to the Agent, for the pro
rata account of all Banks, a commission with respect to each Letter of
Credit (herein the "Letter of Credit Fee") at an annual rate equal to
the applicable Letter of Credit Fee Margin with respect to Letters of
Credit in effect on the date payment thereof becomes due and payable
hereunder. The Letter of Credit Fee shall be payable quarterly in
arrears or upon such others terms as may be agreed upon by the Borrower
and the Required Banks at the time of issuance of any such Letter of
Credit; provided, however, that from and after the occurrence of an
Event of Default and continuing thereafter until
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such Event of Default shall be remedied to the written satisfaction of
the Required Banks, the applicable Letter of Credit Fee payable
hereunder with respect to each Letter of Credit shall be equal to the
sum of (i) the applicable Letter of Credit Fee Margin otherwise in
effect with respect to such Letter of Credit and (ii) two percent (2%).
Letter of Credit Fees payable by the Borrower to the Banks in accordance
with this subsection (c) shall be shared among the Banks pro rata in
accordance with their respective Percentages.
(d) Upon issuance of a Letter of Credit hereunder, and
without any further notice to any Bank, each Bank shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the
Letter of Credit Bank an undivided participating interest in the Letter
of Credit Bank's risk and obligation under such Letter of Credit and in
the obligation of the Letter of Credit Bank to honor drafts thereunder,
and in the amount of any drawing thereunder, and in all rights of the
Letter of Credit Bank to obtain reimbursement from the Borrower in the
amount of such drawing, and all other rights of the Letter of Credit
Bank with respect thereto, in an amount equal to the product of (i) the
sum of the maximum amount available to be drawn under such Letter of
Credit and the amount of any drawing thereunder, and (ii) the Percentage
of such Bank. Whenever a draft submitted under a Letter of Credit is
paid by the Letter of Credit Bank, the Letter of Credit Bank shall so
notify the Agent, the Agent shall so notify each Bank and shall request
immediate reimbursement from the Borrower for the amount of the draft.
If sufficient funds are not immediately paid to the Agent by the
Borrower, the Borrower shall be deemed to have requested a Borrowing
pursuant to Section 2.2 and the Banks shall be notified of such request
in accordance with Section 2.2 and shall fund such request for a
Borrowing as Floating Rate Advances (in accordance with their respective
Percentages) for purposes of reimbursing the Letter of Credit Bank for
the amount of such draft so paid by the Letter of Credit Bank (less any
amounts realized by the Letter of Credit Bank pursuant to the second
sentence of this Section 2.6(d)). If for any reason or under any
circumstance (including, without limitation, the occurrence of a Default
or Event of Default or the failure to satisfy any of the conditions set
forth in Section 3.2) the Banks do not make such Revolving Advances as
contemplated above and the Borrower does not otherwise reimburse the
Letter of Credit Bank for the amount of the draft so paid by the Letter
of Credit Bank, the Borrower shall nonetheless be obligated to reimburse
the amount of the draft to the Letter of Credit Bank, with interest upon
such amount at the Default Rate from and after the date such draft is
paid by the Letter of Credit Bank until the amount thereof is repaid to
the Letter of Credit Bank in full. If the Letter of Credit Bank shall
not have obtained reimbursement for any drawing under a Letter of Credit
(whether from the Borrower or as proceeds of a Borrowing), upon demand
of the Agent each Bank shall immediately advance the amount of its
participation in such drawing to the Letter of Credit Bank and shall be
entitled to interest on such participating interest at the Default Rate
until reimbursed in full by the Borrower.
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(e) Each Bank and the Borrower agree that, in paying any
drawing under a Letter of Credit, the Letter of Credit 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. The Letter of Credit Bank shall not 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 Required Banks, as
applicable); (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document executed in
connection with a Letter of Credit.
(f) The Borrower 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 that this assumption is not intended to,
and shall not, preclude the Borrower's pursuing such rights and remedies
as the Borrower may have against the beneficiary or transferee at law or
under any other agreement. The Letter of Credit Bank shall not be liable
or responsible for any of the matters described in clauses (i) through
(vii) of subsection (f) below. In furtherance and not in limitation of
the foregoing: (i) the Letter of Credit Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation; and (ii) the Letter of Credit 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.
(g) The obligation of the Borrower under this Agreement to
reimburse the Letter of Credit Bank for a drawing under a Letter of
Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of this
Agreement, the Master Agreement for Standby Letters of Credit or
any letter of credit application;
(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 Borrower in respect of any Letter of Credit
or any other amendment or waiver of or any consent to departure
from the Master Agreement for Standby Letters of Credit or any
letter of credit application;
(iii) the existence of any claim, set-off, defense or
other right that the Borrower 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 Letter of Credit Bank or any other Person,
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whether in connection with this Agreement, the transactions
contemplated hereby 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 Letter of Credit 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 Letter of Credit
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 Borrower 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 Borrower.
(h) Notwithstanding anything in this Section 2.6 to the
contrary, including particularly subsections (f) and (g) above, the
Borrower may have a claim against the Letter of Credit Bank and the
Letter of Credit Bank may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which the Borrower proves
were caused by the Letter of Credit Bank's willful misconduct or gross
negligence or the willful failure to pay under any Letter of Credit
after the presentation to the Letter of Credit Bank by the beneficiary
of a sight draft and certificate strictly complying with the terms and
conditions of a Letter of Credit.
(i) The Borrower shall indemnify, protect, defend and hold
harmless each Indemnitee from and against all losses, liabilities,
claims, damages, judgments, costs and expenses, including but not
limited to all reasonable attorneys' fees and legal expenses, incurred
by the Indemnitees or imposed upon the Indemnitees at any time by reason
of the issuance, demand for honor or honor of any Letter of Credit or
the enforcement, protection or collection of the Letter of Credit Bank's
claims against the Borrower under this Section 2.6 or by reason of any
act or omission of any Indemnitee in connection with any of the
foregoing; provided, however, that such indemnification
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shall not extend to losses, liabilities, claims, damages, judgments,
costs and expenses to the extent arising from any act or omission of an
Indemnitee which constitutes gross negligence or willful misconduct.
(j) The Borrower hereby agrees to pay to the Letter of
Credit Bank, on demand, all administrative fees charged by the Letter of
Credit Bank in the ordinary course of business in connection with the
issuance of letters of credit, honoring of drafts under letters of
credit, amendments thereto, transfers thereof and all other activity
with respect to letters of credit, at the then current rates established
by the Letter of Credit Bank from time to time for such services
rendered on behalf of customers of the Letter of Credit Bank generally.
Section 2.7. Interest on Obligations. The Borrower hereby
agrees to pay interest on the unpaid principal amount of each unpaid Obligation
for the period commencing on the date of this Agreement until the unpaid
principal amount thereof is paid in full, in accordance with the following:
(a) Floating Rate Fundings. Subject to subsection (c) below,
while any outstanding principal of a Revolving Note constitutes a
Floating Rate Funding, the outstanding principal balance thereof shall
bear interest at an annual rate at all times equal to the Floating Rate
applicable to such Floating Rate Funding.
(b) Eurodollar Rate Fundings. Subject to subsection (c)
below, while any outstanding principal of a Revolving Note constitutes a
Eurodollar Rate Funding, the outstanding principal balance thereof shall
bear interest for the applicable Interest Period at an annual rate equal
to the Eurodollar Rate established with respect such Eurodollar Rate
Funding in accordance with Section 2.3, 2.4 or 2.5 hereof.
(c) Default Rate. From and after the occurrence of an Event
of Default and continuing thereafter until such Event of Default shall
be remedied to the written satisfaction of the Required Banks, the
outstanding principal balance of each Revolving Note shall bear
interest, until paid in full, at a rate equal to the sum of (i) the
interest rate otherwise in effect with respect to such outstanding
principal and (ii) two percent (2%). In addition, all fees,
indemnification obligations and other Obligations not paid when due
hereunder shall bear interest, until paid in full, at an annual rate
equal to the sum of (i) the Floating Rate (with the then applicable
Floating Rate Margin) and (ii) two percent (2%) (each rate described in
this subsection (c) herein a "Default Rate").
Section 2.8. Obligation to Repay Advances; Representations.
The Borrower shall be obligated to repay all Advances under this Article II
notwithstanding the failure of the Agent to receive any written request therefor
or written confirmation thereof and notwithstanding the fact that the person
requesting the same was not in fact authorized to do so. Any request for a
Borrowing under Section 2.2, whether written, telephonic, telecopy or otherwise,
shall be deemed to be a representation by the Borrower that (a) the amount of
the
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requested Borrowing, when added to the Revolving Facility Outstanding Amount,
would not exceed the Revolving Commitment Amount and (b) the statements set
forth in Section 3.2 are correct as of the time of the request.
Section 2.9. Revolving Notes. All Revolving Advances made by a
Bank hereunder shall be evidenced by and repayable in accordance with a
Revolving Note issued by the Borrower to such Bank. The aggregate unpaid
principal amount of each Revolving Note shall bear interest at the applicable
Floating Rate unless a Eurodollar Rate shall become applicable thereto pursuant
to Sections 2.3, 2.4 or 2.5, and shall be payable on the Maturity Date or
earlier in accordance with Section 7.2.
Section 2.10. Interest Due Dates. Accrued interest on each
Eurodollar Rate Funding shall be payable on the last day of the Interest Period
relating to such Eurodollar Rate Funding; provided, however, that if any
Interest Period is longer than three (3) months, interest shall be payable in
arrears (3) three months, or a whole multiple thereof, after the first day of
such Interest Period and on the last day of the Interest Period. Accrued
interest on each Floating Rate Funding shall be payable in arrears on the last
day of each calendar quarter and at maturity or conversion of such Floating Rate
Funding to a Eurodollar Rate Funding.
Section 2.11. Computation of Interest and Fees. Interest
accruing on the Revolving Notes and all other fees described in Section 2.12
shall be computed on the basis of actual number of days elapsed in a year of
three hundred sixty (360) days.
Section 2.12. Fees. The Borrower hereby agrees to pay fees to
the Agent and the Banks, commencing on the date hereof and continuing until all
Obligations are paid in full, in accordance with the following:
(a) Agent's Administrative Fee. The Borrower agrees to pay
to the Agent, for the sole account of the Agent, a non-refundable
agent's administrative fee (the "Agent's Administrative Fee") in the
amount of $15,000 per year, with such Agent's Administrative Fee being
payable annually in advance on the Closing Date and on each anniversary
of the Closing Date.
(b) Commitment Fee. The Borrower agrees to pay to the Agent,
for the pro rata account of the Banks, a commitment fee (the "Commitment
Fee") computed at the rate of the applicable Commitment Fee Percentage
per annum on the daily average amount by which the Revolving Commitment
Amount exceeds the Revolving Facility Outstanding Amount, from the
Closing Date to and including the Revolving Commitment Termination Date,
payable quarterly in arrears on the last day of each September,
December, March and June, commencing December 31, 1999. Any such
Commitment Fee remaining unpaid on the Revolving Commitment Termination
Date shall be due and payable on such date. The Commitment Fee shall be
shared by the Banks on the basis of their respective Percentages.
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Section 2.13. Use of Proceeds. The Proceeds of each Borrowing
shall be used by the Borrower for its general corporate purposes and shall be
reloaned by the Borrower to Fluoroware and Empak to be used by Fluoroware and
Empak for their working capital and general corporate purposes.
Section 2.14. Voluntary Reduction or Termination of the
Revolving Commitments; Prepayments.
(a) Reduction or Termination of Revolving Commitments. The
Borrower, from time to time upon not less than five (5) Business Days'
prior written notice to the Agent, may permanently reduce the Revolving
Commitment Amount; provided, however, that no such reduction shall
reduce the Revolving Commitment Amount to an amount less than the
Revolving Facility Outstanding Amount. Any such voluntary reduction
shall be pro rata as to all Revolving Commitments according to each
Bank's Percentage of the Revolving Facility and shall be in an aggregate
amount equal to $5,000,000 or a higher integral multiple of $1,000,000.
The Borrower at any time prior to the Revolving Commitment Termination
Date may terminate the Revolving Commitments by (i) providing to the
Agent not less than five (5) Business Days prior written notice of its
intention to so terminate the Revolving Commitments and (ii) making
payment in full of all principal and interest on the Revolving Notes and
terminating, or making a cash deposit with respect to, all outstanding
Letters of Credit.
(b) Prepayments. The Borrower from time to time may
voluntarily prepay the Revolving Notes in whole or in part. In the event
of any voluntary prepayment hereunder (i) any prepayment of the
Revolving Facility shall be applied against outstanding Advances of each
Bank under the Revolving Facility pro rata according to each Bank's
Percentage of the Revolving Facility, (ii) each prepayment of the
Revolving Notes shall be made to the Agent not later than 12:00 Noon,
Minneapolis, Minnesota time, on a Business Day, and funds received after
that hour shall be deemed to have been received by the Agent on the next
following Business Day, (iii) each partial prepayment of Fundings which,
at the time of such prepayment, bear interest at a Eurodollar Rate shall
be accompanied by accrued interest on such partial prepayment through
the date of prepayment and additional compensation calculated in
accordance with Section 2.18, (iv) each partial prepayment of Fundings
which, at the time of such prepayment, bear interest at a Eurodollar
Rate, shall be in an aggregate amount equal to the applicable minimum
Funding amount specified in Section 2.2, and, after application of any
such prepayment, shall not result in a Eurodollar Rate Funding remaining
outstanding in an amount less than such minimum Funding amount, and (v)
each partial prepayment of Fundings which, at the time of such
prepayment, bear interest at a Floating Rate, shall be in an aggregate
amount equal to $500,000 or a higher integral multiple of $500,000,
unless (in either case) the aggregate outstanding balance of all
Revolving Notes being prepaid is less than such minimum Funding amount.
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Section 2.15. Payments.
(a) Making of Payments. All payments of principal of and
interest due shall be made to the Agent for the account of the Banks pro
rata according to their respective Percentages; provided, that any such
payments so received by the Agent after the termination of the Revolving
Commitments following the occurrence of an Event of Default hereunder
shall be allocated among the Banks pro rata according to their Default
Percentages. All payments of fees pursuant to Section 2.12 shall be made
to the Agent (i) for the account of the Agent as to all amounts
specified in Section 2.12 as payable for the exclusive account of the
Agent and (ii) for the account of the Banks pro rata according to their
respective Percentages as to all fees specified in Section 2.12 as
payable for the account of the Banks. All payments to the Agent shall be
made to the Agent at its office in Minneapolis, Minnesota, not later
than 12:00 Noon, Minneapolis, Minnesota time, on the date due, in
immediately available funds, and funds received after that hour shall be
deemed to have been received by the Agent on the next following Business
Day. The Borrower hereby authorizes the Agent to charge the Borrower's
demand deposit accounts maintained with the Agent (or with any other
Bank) for the amount of any Obligation on its due date, but the Agent's
failure to so charge any such account shall in no way affect the
obligation of the Borrower to make any such payment. The Agent shall
remit to each Bank in immediately available funds on the same Business
Day as received by the Agent its share of all such payments received by
the Agent for the account of such Bank. If the Agent fails to remit any
payment to any Bank when required hereby, the Agent shall pay interest
on demand to that Bank for each day during the period commencing on the
date such remittance was due until the date such remittance is made at
an annual rate equal to the Federal Funds Rate for such day. All
payments under Section 2.16, 2.17 or 2.18 shall be made by the Borrower
directly to the Bank entitled thereto.
(b) Effect of Payments. Each payment by the Borrower to the
Agent for the account of any Bank pursuant to Section 2.15(a) shall be
deemed to constitute payment by the Borrower directly to such Bank,
provided, however, that in the event any such payment by the Borrower to
the Agent is required to be returned to the Borrower for any reason
whatsoever, then the Borrower's obligation to such Bank with respect to
such payment shall be deemed to be automatically reinstated.
(c) Distributions by Agent. Unless the Agent shall have been
notified by a Bank or the Borrower prior to the date on which such Bank
or the Borrower are scheduled to make payment to the Agent of (in the
case of a Bank) the proceeds of an Advance to be made by it hereunder or
(in the case of the Borrower) a payment to the Agent for the account of
one or more of the Banks hereunder (such payment by a Bank or the
Borrower (as the case may be) being herein called a "Required Payment"),
which notice shall be effective upon receipt, that it does not intend to
make the Required Payment to the Agent, the Agent may assume that the
Required Payment has been made and may, in reliance upon such assumption
(but shall not be
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required to), make the amount thereof available to the intended
recipient(s) on such date and, if such Bank or the Borrower (as the case
may be) has not in fact made the Required Payment to the Agent, the
recipient(s) of such payment shall, on demand, repay to the Agent the
amount so made available together with interest thereon for each day
during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such amount at
a rate (i) equal to the Federal Funds Rate for such day, in the case of
a Required Payment owing by a Bank, or (ii) equal to the applicable rate
of interest as provided in this Agreement, in the case of a Required
Payment owing by the Borrower.
(d) Setoff. The Borrower agrees that each Bank, subject to
such Bank's sharing obligations set forth in Section 8.6, shall have all
rights of setoff and bankers' lien provided by applicable law, and in
addition thereto, the Borrower agrees that if at any time any Obligation
is due and owing by the Borrower under this Agreement or the other Loan
Documents to any Bank at a time when an Event of Default has occurred
and is continuing hereunder, any Bank may apply any and all balances,
credits, and deposits, accounts or moneys of the Borrower then or
thereafter in the possession of such Bank (excluding, however, any trust
or escrow accounts held by the Borrower for the benefit of any third
party) to the payment thereof.
(e) Due Date Extension. If any payment of principal of or
interest on any Floating Rate Funding or any fees payable hereunder
falls due on a day which is not a Business Day, then such due date shall
be extended to the next following Business Day, and (in the case of
principal) additional interest shall accrue and be payable for the
period of such extension.
(f) Application of Payments. Except as otherwise provided
herein, so long as no Default or Event of Default has occurred and is
continuing hereunder, each payment received from the Borrower shall be
applied to such Obligation as the Borrower shall specify by notice to be
received by the Agent on or before the date of such payment, or in the
absence of such notice, as the Agent shall determine in its discretion.
Concurrently with each remittance to any Bank of its appropriate share
of any such payment (based upon such Bank's Percentage), the Agent shall
advise such Bank as to the application of such payment. Except as
otherwise provided in Article VIII, after the termination of the
Revolving Commitments following the occurrence of a Default or Event of
Default, all payments received by the Agent or any Bank from the
Borrower shall be shared on the basis of each Bank's Default Percentage
thereof.
Section 2.16. Taxes. All payments made by the Borrower to the
Agent or any Bank (herein any "Payee") under or in connection with this
Agreement or the Revolving Notes shall be made without any setoff or other
counterclaim, and shall be free and clear of and without deduction for or on
account of any present or future taxes now or hereafter imposed by any
governmental or other authority, except to the extent that any such deduction or
withholding is compelled by law. As used herein, the term "Taxes" shall include
all
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income, excise and other taxes of whatever nature (other than taxes generally
assessed on the overall net income of a Payee by the government or other
authority of the country, state or political subdivision in which such Payee is
incorporated or in which the office through which such Payee is acting is
located) as well as all levies, imposts, duties, charges, or fees of whatever
nature. "Taxes" shall not include, however, any foreign withholding taxes or
similar deductions imposed solely as a result of a Bank's election to fund an
Advance through a foreign office of such Bank. If the Borrower is compelled by
law to make any deductions or withholdings on account of any Taxes (including
any foreign withholding) the Borrower will:
(a) pay to the relevant authorities the full amount required
to be so withheld or deducted;
(b) pay such additional amounts (including, without
limitation, any penalties, interest or expenses) as may be necessary in
order that the net amount received by the Payee after such deductions or
withholdings (including any required deduction or withholding on such
additional amounts) shall equal the amount the Payee would have received
had no such deductions or withholdings been made; and
(c) promptly forward to the Agent (for delivery to the
appropriate Payee) an official receipt or other documentation
satisfactory to the Agent evidencing such payment to such authorities.
The amount that the Borrower shall be required to pay to any Payee pursuant to
the foregoing clause (b) shall be reduced, to the extent permitted by applicable
law, by the amount of any offsetting tax benefit which such Payee receives as
the result of the Borrower's payment to the relevant authorities as reasonably
determined by such Payee; provided, however, that if such Payee shall
subsequently determine that it has lost the benefit of all or a portion of such
tax benefit, the Borrower shall promptly remit to such Payee the amount
certified by such Payee to be the amount necessary to restore such Payee to the
position it would have been in if no payment had been made pursuant to this
sentence. If any Taxes otherwise payable by the Borrower pursuant to the
foregoing are directly asserted against a Payee, such Payee may pay such taxes
and the Borrower promptly shall reimburse such Payee to the full extent
otherwise required under this Section 2.16. The obligations of the Borrower
under this Section 2.16 shall survive any termination of this Agreement.
If circumstances arise in respect of any Bank which would, or
would upon the giving of notice, result in any liability of the Borrower under
this Section 2.16 then, without in any way limiting, reducing or otherwise
qualifying the Borrower's obligations under this Section 2.16 such Bank shall
promptly, upon becoming aware of the same, notify the Agent and the Borrower
thereof and shall, in consultation with the Agent and the Borrower and to the
extent that it can do so without, in its reasonable judgment, disadvantaging
itself, take such reasonable steps as may be available to it to mitigate the
effects of such circumstances (including, without limitation, the designation of
an alternate office or the transfer of its Eurodollar Rate Fundings to another
office). If and so long as a Bank has been unable to
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take, or has not taken, steps reasonably acceptable to the Borrower to mitigate
the effect of the circumstances in question, such Bank shall be obliged, at the
request of the Borrower, to assign all its rights and obligations hereunder to
another Person designated by the Borrower with the approval of the Agent (which
shall not be unreasonably withheld) which is willing to participate in the
Revolving Facility in place of such Bank; provided that such Person satisfies
all of the requirements of this Agreement, including, but not limited to,
providing the forms and documents required by Section 8.14 and any such Person
shall cover all costs incurred in connection with effecting such replacement.
Section 2.17. Increased Costs; Capital Adequacy; Funding
Exceptions.
(a) Increased Costs on Eurodollar Rate Advances. If
Regulation D of the Board of Governors of the Federal Reserve System or
after the date of this Agreement the adoption of any applicable law,
rule or regulation, or any change in any existing law, or any change in
the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by a Bank with
any request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency, shall:
(i) subject a Bank to or cause the withdrawal or
termination of any exemption previously granted to a Bank with
respect to, any tax, duty or other charge with respect to its
Eurodollar Rate Fundings or its obligation to make Eurodollar
Rate Fundings, or shall change the basis of taxation of payments
to a Bank of the principal of or interest under this Agreement
in respect of its Eurodollar Rate Fundings or its obligation to
make Eurodollar Rate Fundings (except for changes in the rate of
tax on the overall net income of a Bank imposed by the
jurisdictions in which a Bank's principal executive office is
located); or
(ii) impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board
of Governors of the Federal Reserve System, but excluding any
reserve included in the determination of interest rates pursuant
to Section 2.5), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, a Bank; or
(iii) impose on a Bank any other condition affecting
its making, maintaining or funding of its Eurodollar Rate
Fundings or its obligation to make Eurodollar Rate Fundings;
and the result of any of the foregoing is to increase the cost to an
affected Bank of making or maintaining any Eurodollar Rate Funding, or
to reduce the amount of any sum received or receivable by such Bank
under this Agreement or under its Revolving Note with respect to a
Eurodollar Rate Funding, then the affected Bank will notify the
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Borrower and the Agent of such increased cost and within fifteen (15)
days after demand by such Bank (which demand shall be accompanied by a
statement setting forth the basis of such demand) the Borrower shall pay
to such Bank such additional amount or amounts as will compensate the
Bank for such increased cost or such reduction; provided, however, that
no such increased cost or such reduction shall be payable by the
Borrower for any period longer than ninety (90) days prior to the date
on which notice thereof is delivered to the Borrower. Each Bank will
promptly notify the Borrower of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section 2.17 If the Borrower receives
notice from a Bank of any event which will entitle such Bank to
compensation pursuant to this Section 2.17 the Borrower may prepay any
then outstanding Eurodollar Rate Fundings or notify the affected Bank
that any pending request for a Eurodollar Rate Funding shall be deemed
to be a request for a Floating Rate Funding, in each case subject to the
provisions of Section 2.18.
(b) Capital Adequacy. If a Bank determines at any time that
such Bank's Return has been reduced as a result of any Capital Adequacy
Rule Change, such Bank may require the Borrower to pay to such Bank the
amount necessary to restore such Bank's Return to what it would have
been had there been no Capital Adequacy Rule Change. For purposes of
this Section 2.17(b), the following definitions shall apply:
(i) "Return", for any calendar quarter or shorter
period, means the percentage determined by dividing (A) the sum
of interest and ongoing fees earned by a Bank under this
Agreement during such period by (B) the average capital such
Bank is required to maintain during such period as a result of
its being a party to this Agreement, as determined by such Bank
based upon its total capital requirements and a reasonable
attribution formula that takes account of the Capital Adequacy
Rules then in effect. Return may be calculated for a Bank for
each calendar quarter and for the shorter period between the end
of a calendar quarter and the date of termination in whole of
this Agreement.
(ii) "Capital Adequacy Rule" means any law, rule,
regulation or guideline regarding capital adequacy that applies
to a Bank, or the interpretation thereof by any governmental or
regulatory authority. Capital Adequacy Rules include rules
requiring financial institutions to maintain total capital in
amounts based upon percentages of outstanding loans, binding
loan commitments and letters of credit.
(iii) "Capital Adequacy Rule Change" means any change
in any Capital Adequacy Rule occurring after the date of this
Agreement, but does not include any changes in applicable
requirements that at the date hereof are scheduled to take place
under the existing Capital Adequacy Rules or any increases in
the capital that a Bank is required to maintain to the extent
that the
-27-
increases are required due to a regulatory authority's
assessment of such Bank's financial condition.
The initial notice sent by a Bank shall be sent as promptly as
practicable after such Bank learns that its Return has been reduced,
shall include a demand for payment of the amount necessary to restore
such Bank's Return for the quarter in which the notice is sent, and
shall state in reasonable detail the cause for the reduction in such
Bank's Return and such Bank's calculation of the amount of such
reduction. Thereafter, a Bank may send a new notice during each calendar
quarter setting forth the calculation of the reduced Return for that
quarter and including a demand for payment of the amount necessary to
restore such Bank's Return for that quarter. A Bank's calculation in any
such notice shall be conclusive and binding absent demonstrable error.
(c) Basis for Determining Interest Rate Inadequate or
Unfair. If with respect to any Interest Period:
(i) the Agent determines that, or the Required Banks
determine and advise the Agent that, deposits in U.S. dollars
(in the applicable amounts) are not being offered in the London
interbank eurodollar market for such Interest Period; or
(ii) the Agent otherwise determines, or the Required
Banks determine and advise the Agent (which determination shall
be binding and conclusive on all parties), that by reason of
circumstances affecting the London interbank eurodollar market
adequate and reasonable means do not exist for ascertaining the
applicable Eurodollar Rate; or
(iii) the Agent determines, or the Required Banks
determine and advise the Agent, that the Eurodollar Rate as
determined by the Agent will not adequately and fairly reflect
the cost to the Banks of maintaining or funding a Eurodollar
Rate Funding for such Interest Period, or that the making or
funding of Eurodollar Rate Fundings has become impracticable as
a result of an event occurring after the date of this Agreement
which in the opinion of such Banks materially affects such
Eurodollar Rate Fundings;
then the Agent shall promptly notify the affected parties and (A) in the
event of any occurrence described in the foregoing clause (i) the
Borrower shall enter into good faith negotiations with each affected
Bank in order to determine an alternate method to determine the
Eurodollar Rate for such Bank, and during the pendency of such
negotiations with any Bank, such Bank shall be under no obligation to
make any new Eurodollar Rate Fundings, and (B) in the event of any
occurrence described in the foregoing clauses (ii) or (iii), for so long
as such circumstances shall continue, no Bank shall be under any
obligation to make any new Eurodollar Rate Fundings.
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(d) Illegality. In the event that any change in (including
the adoption of any new) applicable laws or regulations, or any change
in the interpretation of applicable laws or regulations by any
governmental authority, central bank, comparable agency or any other
regulatory body charged with the interpretation, implementation or
administration thereof, or compliance by a Bank with any request or
directive (whether or not having the force of law) of any such
authority, central bank, comparable agency or other regulatory body,
should make it or, in the good faith judgment of the affected Bank,
shall raise a substantial question as to whether it is unlawful for such
Bank to make, maintain or fund Eurodollar Rate Fundings, then (i) the
affected Bank shall promptly notify the Borrower and the Agent, (ii) the
obligation of the affected Bank to make, maintain or convert into
Eurodollar Rate Fundings shall, upon the effectiveness of such event, be
suspended for the duration of such unlawfulness, and (iii) for the
duration of such unlawfulness, any notice by the Borrower pursuant to
Sections 2.3, 2.4 or 2.5 requesting the affected Bank to make or convert
into Eurodollar Rate Fundings shall be construed as a request to make or
to continue making Floating Rate Fundings.
(e) Procedures to Mitigate. If circumstances arise in
respect of any Bank which would or would upon the giving of notice
result in any liability of the Borrower under this Section 2.17 then,
without in any way limiting, reducing or otherwise qualifying the
Borrower's obligations under this Section 2.17, such Bank shall
promptly, upon becoming aware of the same, notify the Agent and the
Borrower thereof and shall, in consultation with the Agent and the
Borrower and to the extent that it can do so without, in its reasonable
judgment, disadvantaging itself, take such reasonable steps as may be
available to it to mitigate the effects of such circumstances
(including, without limitation, the designation of an alternate office
or the transfer of its Eurodollar Rate Fundings to another office). If
and so long as a Bank has been unable to take, or has not taken, steps
reasonably acceptable to the Borrower to mitigate the effect of the
circumstances in question, such Bank shall be obliged, at the request of
the Borrower, to assign all its rights and obligations hereunder to
another Person designated by the Borrower with the approval of the Agent
(which shall not be unreasonably withheld) and willing to participate in
the Revolving Facility in place of such Bank; provided that such Person
satisfies all of the requirements of this Agreement, including, but not
limited to, providing the forms and documents required by Section 8.14
and any such Person shall cover all costs incurred in connection with
effecting such replacement.
Section 2.18. Funding Losses. The Borrower hereby agrees that
upon demand by any Bank (which demand shall be accompanied by a statement
setting forth the basis for the calculations of the amount being claimed) the
Borrower will indemnify such Bank against any loss or expense which such Bank
may have sustained or incurred (including, without limitation, any net loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain Eurodollar Rate Fundings)
or which such Bank may be deemed to have sustained or incurred, as reasonably
determined
-29-
by such Bank, (i) as a consequence of any failure by the Borrower to make any
payment when due of any amount due hereunder in connection with any Eurodollar
Rate Fundings, (ii) due to any failure of the Borrower to borrow or convert any
Eurodollar Rate Fundings on a date specified therefor in a notice thereof or
(iii) due to any payment or prepayment of any Eurodollar Rate Funding on a date
other than the last day of the applicable Interest Period for such Eurodollar
Rate Funding. For this purpose, all notices under Sections 2.3, 2.4 and 2.5
shall be deemed to be irrevocable.
Section 2.19. Right of Banks to Fund through Other Offices.
Each Bank, if it so elects, may fulfill its agreements hereunder with respect to
any Eurodollar Rate Funding by causing a foreign branch or affiliate of such
Bank to make such Eurodollar Rate Funding; provided, that in such event the
obligation of the Borrower to repay such Eurodollar Rate Funding shall
nevertheless be to such Bank and such Eurodollar Rate Funding shall be deemed
held by such Bank for the account of such branch or affiliate.
Section 2.20. Discretion of Banks as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each Bank shall
be entitled to fund and maintain all or any part of its Eurodollar Rate Fundings
in any manner it deems fit, it being understood, however, that for the purposes
of this Agreement (specifically including, without limitation, Section 2.18
hereof) all determinations hereunder shall be made as if each Bank had actually
funded and maintained each Eurodollar Rate Funding during each Interest Period
for such Eurodollar Rate Funding through the purchase of deposits having a
maturity corresponding to such Interest Period and bearing an interest rate
equal to the appropriate Eurodollar Rate for such Interest Period.
Section 2.21. Conclusiveness of Statements; Survival of
Provisions. Determinations and statements of a Bank pursuant to Section 2.16,
2.17, or 2.18 shall be conclusive absent demonstrable error. Each Bank may use
reasonable averaging and attribution methods in determining compensation
pursuant to such Sections 2.16, 2.17 or 2.18 and the provisions of Sections
2.16, 2.17 and 2.18 shall survive termination of this Agreement.
ARTICLE III
CONDITIONS OF LENDING
Section 3.1. Conditions Precedent to the Initial Borrowing.
The obligation of the Banks to fund the initial request for a Borrowing or issue
any Letter of Credit is subject to the condition precedent that the Agent shall
have received the following, each in form and substance satisfactory to the
Agent:
(a) The Revolving Notes, properly executed on behalf of the
Borrower.
(b) The Guaranties, properly executed on behalf of the
Guarantors.
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(c) The Master Agreement for Standby Letters of Credit,
properly executed on behalf of the Borrower.
(d) Current searches of appropriate filing offices showing
that no state or federal tax liens have been filed and remain in effect
against the Borrower or either Guarantor, and that no financing
statements or other notifications or filings have been filed and remain
in effect against the Borrower or either Guarantor, other than those for
which the Agent has received an appropriate release, termination or
satisfaction or those permitted in accordance with Section 6.1 of this
Agreement.
(e) A certified copy of the resolutions of the board of
directors of the Borrower and each of the Guarantors, respectively,
evidencing approval of all Loan Documents to which the Borrower or such
Guarantor, as applicable, is a party and the other matters contemplated
hereby.
(f) Copies of the Articles of Incorporation and Bylaws of
the Borrower and each of the Guarantors, respectively, certified by the
Secretary or Assistant Secretary of the Borrower and such Guarantor, as
applicable, as being true and correct copies thereof.
(g) Certificates of good standing of the Borrower and each
of the Guarantors, respectively, dated not more than thirty (30) days
prior to the date hereof, and evidence satisfactory to the Agent that
the Borrower and each of the Guarantors are qualified to conduct their
respective businesses in each state where they presently conduct such
business.
(h) A signed copy of a certificate of the Secretary or an
Assistant Secretary of the Borrower and each of the Guarantors,
respectively, which shall certify the names of the officers of such
Borrower or such Guarantor, as applicable, authorized to sign the Loan
Documents and the other documents or certificates to be delivered
pursuant to this Agreement, including requests for Advances and
Eurodollar Rate Fundings, together with the true signatures of such
officers. The Agent and each Bank may conclusively rely on such
certificates until they shall receive a further certificate of the
Secretary or an Assistant Secretary of the Borrower and each such
Guarantor, respectively, canceling or amending the prior certificate and
submitting the signatures of the officers named in such further
certificate.
(i) Audited financial statements acceptable to the Banks for
the period ended August 29, 1998 for the Borrower and its Subsidiaries
and unaudited, internally-prepared financial statements for the period
ended June 26, 1999 for the Borrower and its Subsidiaries.
(j) A signed copy of an opinion of counsel for the Borrower
and the Guarantors, addressed to the Agent and the Banks.
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(k) Payment of all fees and expenses then due and payable
pursuant to Sections 2.12 and 9.4 hereof.
(l) Such other items as the Agent or the Required Banks
shall reasonably require.
Section 3.2. Conditions Precedent to All Borrowings. The
obligation of the Banks to fund each request for a Borrowing or to issue each
Letter of Credit shall be subject to the further conditions precedent that on
such date:
(a) the representations and warranties contained in Article
IV hereof are correct in all material respects on and as of the date of
such Advance as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result
from such Advance, which constitutes a Default or an Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Banks as follows:
Section 4.1. Corporate Existence and Power; Name; Chief
Executive Office. The Borrower and each of its Subsidiaries is a corporation
duly incorporated, validly existing and in good standing under the laws of its
respective state of incorporation, and is duly licensed or qualified to transact
business in all jurisdictions where the character of the property owned or
leased or the nature of the business transacted by it makes such licensing or
qualification necessary. The Borrower and each of its Subsidiaries has all
requisite power and authority, corporate or otherwise, to conduct its business,
to own its properties and to execute and deliver, and to perform all of its
obligations under, the Loan Documents to which it is a party. Within the last
twelve (12) months, the Borrower and each of its Subsidiaries has done business
solely under the names set forth in Schedule 4.1 hereto. The chief executive
office and principal place of business of the Borrower and each of its
Subsidiaries is located at the address set forth in Schedule 4.1 hereto, and all
of the records relating to the businesses of the Borrower and each of its
Subsidiaries are kept at that location.
Section 4.2. Authorization for Borrowings; No Conflict as to
Law or Agreements. The execution, delivery and performance by the Borrower and
its Subsidiaries of the Loan Documents to which it is a party, and the Advances
made and Letters of Credit issued from time to time hereunder, have been duly
authorized by all necessary corporate action and do not and will not (i) require
any consent or approval which has not been obtained prior to the date hereof,
(ii) require any authorization, consent or approval by, or registration,
declaration or filing (other than filing of financing statements as contemplated
hereunder) with, or notice to, any governmental department, commission, board,
bureau,
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agency or instrumentality, domestic or foreign, or any third party, except such
authorization, consent, approval, registration, declaration, filing or notice as
has been obtained, accomplished or given prior to the date hereof, (iii) violate
any provision of any law, rule or regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or of any
order, writ, injunction or decree presently in effect having applicability to
the Borrower or any of its Subsidiaries or of the articles of incorporation,
bylaws or other organizational documents of the Borrower or any of its
Subsidiaries, (iv) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other material agreement, lease or
instrument to which the Borrower or any of its Subsidiaries is a party or by
which it or its properties may be bound or affected, or (v) result in, or
require, the creation or imposition of any mortgage, deed of trust, pledge,
lien, security interest or other charge or encumbrance of any nature upon or
with respect to any of the properties now owned or hereafter acquired by the
Borrower or any of its Subsidiaries (other than as required hereunder in favor
of the Banks).
Section 4.3. Legal Agreements. Each of the Loan Documents to
which the Borrower or any of its Subsidiaries is a party constitutes the legal,
valid and binding obligations and agreements of the Borrower or such Subsidiary,
as applicable, enforceable against the Borrower or such Subsidiary, as
applicable, in accordance with its terms.
Section 4.4. Subsidiaries. Schedule 4.4 attached hereto is a
complete and correct list of all Subsidiaries and Affiliates of the Borrower and
the percentage of the ownership of the Borrower or any Subsidiary in each such
Subsidiary or Affiliate as of the date of this Agreement. All shares of each
Subsidiary and Affiliate owned by the Borrower or any Subsidiary are validly
issued and fully paid and non-assessable.
Section 4.5. Financial Condition; No Adverse Change. The
Borrower has furnished to the Agent the audited financial statements for the
period ended August 29, 1998 for the Borrower and its Subsidiaries and
unaudited, internally-prepared financial statements for the period ended June
26, 1999 for the Borrower and its Subsidiaries. Those financial statements
fairly present the financial condition of the Borrower and its Subsidiaries on
the dates thereof and the results of operations for the periods then ended
(subject to year-end audit adjustments) and were prepared in accordance with
GAAP. Since the date of the financial statements described above, there has not
occurred any event or circumstance that would have a Material Adverse Effect.
Section 4.6. Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries or the properties of the
Borrower or any of its Subsidiaries before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which, if determined adversely to the Borrower or such Subsidiary, could
reasonably be expected to have a Material Adverse Effect, except as set forth
and described in Schedule 4.6.
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Section 4.7. Regulation U. None of the Borrower or any of its
Subsidiaries has engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System), and no part of the proceeds
of any Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock.
Section 4.8. Taxes. The Borrower and each of its Subsidiaries
has paid or caused to be paid to the proper authorities when due all federal,
state and local taxes required to be withheld by it. The Borrower and each of
its Subsidiaries has filed all federal, state and local tax returns which to the
knowledge of the officers of the Borrower or its Subsidiaries, are required to
be filed, and the Borrower and each of its Subsidiaries has paid or caused to be
paid to the respective taxing authorities all taxes as shown on said returns or
on any assessment received by it to the extent such taxes have become due,
except for any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested by the Borrower or such Subsidiary, as
applicable, in good faith and by proper proceedings and for which the Borrower
or any such Subsidiary, as applicable, shall have set aside adequate reserves.
Section 4.9. Titles and Liens. The Borrower or its
Subsidiaries have good and absolute title to all properties and assets reflected
in the latest consolidated balance sheets referred to in Section 4.5, free and
clear of all mortgages, security interests, liens and encumbrances, except for
(a) mortgages, security interests and liens permitted by Section 6.1, and (b)
covenants, restrictions, rights, easements and minor irregularities in title
which do not (i) materially interfere with the business or operations of the
Borrower or its Subsidiaries as presently conducted and (ii) materially impair
the value of the property to which they attach. In addition, no financing
statement naming any of the Borrower or its Subsidiaries as debtor is on file in
any office except to perfect only security interests permitted by Section 6.1.
Section 4.10. Plans. Except as set forth and described in
Schedule 4.10, none of the Borrower or any of its Subsidiaries currently
maintains or has in the past maintained any Plan. None of the Borrower or any of
its Subsidiaries has received any notice, nor has it received any knowledge to
the effect, that it is not in full compliance in all material respects with any
of the requirements of ERISA. No Reportable Event or other fact or circumstance
which would reasonably be expected to have an adverse effect on the Plan's tax
qualified status exists in connection with any Plan. None of the Borrower or any
of its Subsidiaries has:
(a) any accumulated funding deficiency within the meaning of
ERISA; or
(b) any liability or know of any fact or circumstances which
could result in any liability to the Pension Benefit Guaranty
Corporation, the Internal Revenue Service, the Department of Labor or
any participant in connection with any Plan (other than accrued benefits
which are or which may become payable to participants or beneficiaries
of any such Plan).
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Section 4.11. Default. The Borrower and each of its
Subsidiaries is in compliance with all provisions of all agreements,
instruments, decrees and orders to which it is a party or by which it or its
property is bound or affected, the breach or default of which could reasonably
be expected to have a Material Adverse Effect.
Section 4.12. Environmental Compliance. The Borrower and each
of its Subsidiaries have obtained all permits, licenses and other authorizations
which are required under federal, state and local laws and regulations relating
to emissions, discharges, releases of pollutants, contaminants, hazardous or
toxic materials, or wastes into ambient air, surface water, ground water or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants
or hazardous or toxic materials or wastes ("Environmental Laws") at the
facilities of the Borrower or any of its Subsidiaries or in connection with the
operation of such facilities. Except as disclosed in Schedule 4.12, the Borrower
and each of its Subsidiaries and all activities of the Borrower and each of its
Subsidiaries at its respective facilities comply with all Environmental Laws and
with all terms and conditions of any required permits, licenses and
authorizations applicable to the Borrower or any such Subsidiary with respect
thereto. Except as disclosed in Schedule 4.12, the Borrower and each of its
Subsidiaries is in compliance with all limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in Environmental Laws or contained in any plan, order, decree,
judgment or notice of which the Borrower or such Subsidiary is aware and with
respect to which noncompliance would have a Material Adverse Effect. Except as
disclosed in Schedule 4.12, none of the Borrower or any of its Subsidiaries is
aware of, nor has the Borrower or any of its Subsidiaries received notice of,
any events, conditions, circumstances, activities, practices, incidents, actions
or plans which may interfere with or prevent continued compliance with, or which
may give rise to any liability under, any Environmental Laws.
Section 4.13. Submissions to Banks. All financial and other
information provided to the Agent or any Bank by or on behalf of the Borrower
and its Subsidiaries in connection with the request for the credit facilities
contemplated hereby is true and correct in all material respects and, as to
projections, valuations or pro forma financial statements, present a good faith
opinion as of the date made as to such projections, valuations and pro forma
condition and results.
Section 4.14. Financial Solvency. Both before and after giving
effect to all of the transactions contemplated in the Loan Documents, the
Borrower and each of its Subsidiaries:
(a) was not and will not be insolvent, as that term is used
and defined in Section 101(32) of the United States Bankruptcy Code and
Section 2 of the Uniform Fraudulent Transfer Act;
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(b) does not have unreasonably small capital and is not
engaged or about to engage in a business or a transaction for which any
remaining assets of the Borrower or such Subsidiary, as applicable, are
unreasonably small;
(c) does not, by executing, delivering or performing its
obligations under the Loan Documents or by taking any action with
respect thereto, intend to, nor believe that it will, incur debts beyond
its ability to pay them as they mature;
(d) does not, by executing, delivering or performing its
obligations under the Loan Documents or by taking any action with
respect thereto, intend to hinder, delay or defraud either its present
or future creditors; and
(e) does not contemplate filing a petition in bankruptcy or
for an arrangement or reorganization or similar proceeding under any law
any jurisdiction or country, and, to the best knowledge of the Borrower
and each of its Subsidiaries, is not the subject of any bankruptcy or
insolvency proceedings or similar proceedings under any law of any
jurisdiction or country threatened or pending against the Borrower or
any such Subsidiary.
Section 4.15 Year 2000. The Borrower and each of its
Subsidiaries have evaluated all of the data processing systems necessary to the
conduct of its business (including computer hardware, software and firmware, and
including data processing systems embedded within equipment) and have
implemented such hardware and software modifications and upgrades as are
necessary for such systems to be Year 2000 Compliant in all material respects,
and all such systems are Year 2000 Compliant in all material respects. For
purposes hereof, "Year 2000 Compliant" means with respect to any data processing
system, (i) that such system accurately records, stores, processes and presents
date data with respect to dates on and after January 1, 2000 in the same manner,
and with substantially the same functionality, as such system records, stores,
processes and presents date data with respect to dates on and before December
31, 1999; and (ii) that such system accurately records, stores, processes and
presents date ranges beginning on or before December 31, 1999 and ending on or
after January 1, 2000, or occurring entirely on or after January 1, 2000, in the
same manner, and with substantially the same functionality, as such system
records, stores, processes and presents date ranges occurring entirely on or
before December 31, 1999.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Revolving Note or Letter of Credit shall remain
unpaid or outstanding or any Revolving Commitment shall be outstanding, the
Borrower will comply with the following requirements, unless the Required Banks
shall otherwise consent in writing:
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Section 5.1. Reporting Requirements. The Borrower will
deliver, or cause to be delivered, to each Bank each of the following, which
shall be in form and detail reasonably acceptable to the Required Banks:
(a) as soon as available, and in any event within 120 days
after the end of each fiscal year of the Borrower, the annual audit
report of the Borrower and its Subsidiaries with the unqualified opinion
of independent certified public accountants selected by the Borrower and
acceptable to the Agent, which annual report shall include the balance
sheets of the Borrower and its Subsidiaries as at the end of such fiscal
year and the related statements of income, retained earnings and cash
flows of the Borrower and its Subsidiaries for the fiscal year then
ended, prepared on a consolidated and consolidating basis, all in
reasonable detail and prepared in accordance with GAAP, together with a
certificate of the chief financial officer of the Borrower,
substantially in the form of Exhibit E, stating that such annual audit
report has been prepared in accordance with GAAP and whether or not such
officer has knowledge of the occurrence of any Default or Event of
Default hereunder and, if so, stating in reasonable detail the facts
with respect thereto;
(b) as soon as available and in any event on or before the
applicable Quarterly Financial Statement Due Date after the end of each
fiscal quarter of the Borrower, an unaudited/internal balance sheet and
statement of income, cash flow and retained earnings of the Borrower and
its Subsidiaries as at the end of and for such quarter and for the
year-to-date period then ended, prepared on a consolidated and
consolidating basis, in reasonable detail and the figures for the
corresponding date and periods in the previous year, all prepared in
accordance with GAAP hereof, subject to year-end audit adjustments; and
accompanied by a certificate of the chief financial officer of the
Borrower, substantially in the form of Exhibit F, stating (i) that such
financial statements have been prepared in accordance with GAAP, subject
to year-end audit adjustments, (ii) whether or not such officer has
knowledge of the occurrence of any Default or Event of Default hereunder
not theretofore reported and remedied and, if so, stating in reasonable
detail the facts with respect thereto, and (iii) all relevant facts in
reasonable detail to evidence, and the computations as to (A) the status
of the Borrower and its Subsidiaries for purposes of establishing the
appropriate Eurodollar Rate Margin, Floating Rate Margin and Commitment
Fee Percentage and (B) whether or not the Borrower and its Subsidiaries
are in compliance with the requirements set forth in Sections 5.8
through 5.10, 6.10 and 6.15;
(c) not later than thirty (30) days after the beginning of
each fiscal year of the Borrower, the projected balance sheets, income
statements, capital expenditures budget, and cash flow statements for
the Borrower and its Subsidiaries for such year, each in reasonable
detail, representing the good faith projections of the Borrower for such
year, and certified by the chief financial officer of the Borrower as
being the most accurate projections available and identical to the
projections used by the
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Borrower and its Subsidiaries for internal planning purposes, together
with such supporting schedules and information as the Agent from time to
time may reasonably request;
(d) immediately after the commencement thereof, notice in
writing of all litigation and of all proceedings before any governmental
or regulatory agency affecting the Borrower or any of its Subsidiaries
of the type described in Section 4.6 or which (i) seek a monetary
recovery against, the Borrower or any of its Subsidiaries in excess of
$1,000,000; or (ii) if determined adversely to the Borrower or any of
its Subsidiaries, could reasonably be expected to have a Material
Adverse Effect.
(e) as promptly as practicable (but in any event not later
than five (5) Business Days) after an officer of a Borrower obtains
knowledge of the occurrence of a Default or Event of Default hereunder,
notice of such occurrence, together with a detailed statement by a
responsible officer of a Borrower setting forth the steps being taken by
the Borrower or any of its Subsidiaries to cure the effect of such
Default or Event of Default;
(f) as soon as possible and in any event within thirty (30)
days after the Borrower knows or has reason to know that any Reportable
Event with respect to any Plan has occurred, the statement of the chief
financial officer of the Borrower setting forth details as to such
Reportable Event and the action which the Borrower or any of its
Subsidiaries proposes to take with respect thereto, together with a copy
of the notice of such Reportable Event to the Pension Benefit Guaranty
Corporation;
(g) as soon as possible, and in any event within ten (10)
days after the Borrower or any of its Subsidiaries fails to make any
quarterly contribution required with respect to any Plan under Section
4.12(m) of the Internal Revenue Code of 1986, as amended, the statement
of the chief financial officer of the Borrower setting forth details as
to such failure and the action which the Borrower or any of its
Subsidiaries proposes to take with respect thereto, together with a copy
of any notice of such failure required to be provided to the Pension
Benefit Guaranty Corporation;
(h) promptly upon obtaining knowledge thereof, notice of the
violation by the Borrower or any of its Subsidiaries of any law, rule or
regulation, the non-compliance with which could reasonably be expected
to have a Material Adverse Effect;
(i) promptly upon their distribution, copies of all
financial statements, reports, proxy statements and other communications
which the Borrower shall have sent to its stockholders;
(j) promptly after the sending or filing thereof, copies of
all regular and periodic financial reports which the Borrower or any of
its Subsidiaries shall file with the Securities and Exchange Commission
or any national securities exchange; and
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(k) such other information respecting the financial
conditions and results of operation of the Borrower or any its
Subsidiaries, as the Agent or the Required Banks may from time to time
reasonably request.
Section 5.2. Books and Records; Inspection and Examination.
The Borrower will, and will cause each of its Subsidiaries to, keep accurate
books of record and account for itself pertaining to its business and financial
condition and such other matters as the Agent may from time to time request in
which true and complete entries will be made in accordance with GAAP
consistently applied and, upon request of and reasonable notice by the Agent,
will permit any officer, employee, attorney or accountant for any Bank to audit,
review, make extracts from or copy any and all of its corporate and financial
books and records at all reasonable times during ordinary business hours and to
discuss its affairs with any of its directors, officers, employees or agents.
The Borrower will, and will cause each of its Subsidiaries to, permit any Bank
or its employees, accountants, attorneys or agents, to examine and inspect any
of its property at any time during ordinary business hours; provided, that each
Bank will use reasonable efforts to conduct (or have conducted) any such
examination or inspection so as to minimize disruptions to operations.
Section 5.3. Compliance with Laws. The Borrower will, and will
cause each of its Subsidiaries to, (a) comply with the requirements of
applicable laws and regulations, the noncompliance with which would have a
Material Adverse Effect, (b) use and keep its assets, and will require that
others use and keep its assets, only for lawful purposes, without violation of
any federal, state or local law, statute or ordinance, the noncompliance with
which could reasonably be expected to have a Material Adverse Effect.
Section 5.4. Payment of Taxes and Other Claims. The Borrower
will pay or discharge, when due, and will cause each of its Subsidiaries to pay
or discharge, when due, (a) all taxes, assessments and governmental charges
levied or imposed upon it or upon its income or profits, upon any properties
belonging to it prior to the date on which penalties attach thereto, (b) all
federal, state and local taxes required to be withheld by it, and (c) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien or charge upon any of its properties; provided, neither the Borrower nor
any of its Subsidiaries shall be required to pay any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, has set aside adequate reserves in accordance with
GAAP.
Section 5.5. Maintenance of Properties. The Borrower will, and
will cause each of its Subsidiaries to, keep and maintain, all of its properties
necessary or useful in its business in good condition, repair and working order
(normal wear and tear excepted); provided, however, that nothing in this Section
5.5 shall prevent the Borrower or any of its Subsidiaries from discontinuing the
operation and maintenance of any of its properties if such discontinuance is, in
the reasonable judgment of the Borrower or such Subsidiary, as
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applicable, desirable in the conduct of the its business and not disadvantageous
in any material respect to the Banks.
Section 5.6. Insurance. The Borrower will, and will cause each
of its Subsidiaries to, obtain and all times maintain, insurance with insurers
believed by it to be responsible and reputable in such amounts and against such
risks as is usually carried by companies engaged in similar business and owning
similar properties in the same general areas in which it operates.
Section 5.7. Preservation of Corporate Existence. The Borrower
will, and will cause each of its Subsidiaries to, preserve and maintain its
corporate existence and all of its rights, privileges and franchises necessary
or desirable in the normal conduct of its business and shall conduct its
business in an orderly, efficient and regular manner.
Section 5.8. Fixed Charge Coverage Ratio. As of each Covenant
Computation Date, the Borrower and its Subsidiaries, on a consolidated basis,
will maintain a Fixed Charge Coverage Ratio at not less than 2.00 to 1.00.
Section 5.9 Leverage Ratio. As of each Covenant Computation
Date, the Borrower and its Subsidiaries, on a consolidated basis, will maintain
a Leverage Ratio at not more than 3.00 to 1.00.
Section 5.10 Minimum Net Worth. As of each Covenant
Computation Date, the Borrower and its Subsidiaries, on a consolidated basis,
will maintain a Net Worth at an amount not less than the amount set forth below
opposite the applicable Covenant Computation Date set forth below:
Applicable Covenant Minimum Net
Computation Date Worth Amount
-------------------------------- --------------------------------
Closing Date $99,746,590
February 26, 2000 and each Required Net Worth Amount
subsequent Covenant
Computation Date
As used in this Section 5.10, the "Required Net Worth Amount" for any given
Covenant Computation Date is an amount equal to the sum of the minimum Net Worth
required as of the immediately preceding Covenant Computation Date, plus fifty
percent (50%) of the Net Income realized by the Borrower and its Subsidiaries,
on a consolidated basis, since such immediately preceding Covenant Computation
Date (with any net loss counting as zero in such calculation), plus fifty
percent (50%) of the net cash proceeds received by the Borrower and/or its
Subsidiaries from any equity offering made by the Borrower and/or its
Subsidiaries since such immediately preceding Covenant Computation Date.
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Section 5.11 Merger of Fluoroware and Empak into the Borrower.
The Borrower will cause Fluoroware and Empak to merge into the Borrower, with
the Borrower as the surviving entity, on or before August 31, 2000.
Section 5.12 Execution of Loan Documentation with Other Senior
Unsecured Creditors. On or before January 31, 2000, the Borrower and all
significant senior unsecured creditors of Fluoroware will enter into new loan
documentation with financial covenants and other terms and covenants acceptable
to the Banks, which new loan documentation will refinance such senior unsecured
indebtedness at the Borrower level (rather than at the Fluoroware level).
ARTICLE VI
NEGATIVE COVENANTS
So long as any Revolving Note or Letter of Credit shall remain
unpaid or outstanding or any Revolving Commitment shall be outstanding, the
Borrower will comply with the following requirements, unless the Required Banks
shall otherwise consent in writing:
Section 6.1. Liens. The Borrower will not, and will not permit
any Subsidiary to, create, incur or suffer to exist any mortgage, deed of trust,
pledge, lien, security interest, assignment or transfer upon or of any assets of
the Borrower or any such Subsidiary, now owned or hereafter acquired, to secure
any indebtedness; excluding from the operation of the foregoing (herein
"Permitted Liens"):
(a) mortgages, deeds of trust, pledges, liens, security
interests and assignments in existence on the Closing Date and listed in
Schedule 6.1 (other than those described in subsection (f) securing
indebtedness for borrowed money on the Closing Date);
(b) liens for taxes or assessments or other governmental
charges to the extent not required to be paid by Section 5.4;
(c) materialmen's, merchants', carriers', worker's,
repairer's, or other like liens arising in the ordinary course of
business to the extent not required to be paid by Section 5.4;
(d) pledges or deposits to secure obligations under worker's
compensation laws, unemployment insurance and social security laws, or
to secure the performance of bids, tenders, contracts (other than for
the repayment of borrowed money) or leases or to secure statutory
obligations or surety or appeal bonds, or to secure indemnity,
performance or other similar bonds in the ordinary course of business;
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(e) zoning restrictions, easements, licenses, restrictions
on the use of real property or minor irregularities in title thereto,
which do not materially impair the use of such property in the operation
of the business of the Borrower or any of its Subsidiaries or the value
of such property for the purpose of such business; and
(f) purchase money mortgages, liens or security interests,
including conditional sale agreements or other title retention
agreements and leases which are in the nature of title retention
agreements, upon or in property acquired after the Closing Date by the
Borrower or any of its Subsidiaries, or mortgages, liens or security
interests existing in such property at the time of the acquisition
thereof; provided that no such mortgage, lien or security interest
extends or shall extend to or cover any property of the Borrower or any
of its Subsidiaries other than the property then being acquired and
fixed improvements then or thereafter erected thereon.
Section 6.2. Indebtedness. The Borrower will not, and will not
permit any Subsidiary to, incur, create, assume, permit or suffer to exist, any
indebtedness or liability on account of deposits or advances or any indebtedness
for borrowed money, or any other indebtedness or liability evidenced by notes,
bonds, debentures or similar obligations, except:
(a) Obligations arising hereunder;
(b) indebtedness in existence on the Closing Date and listed
in Schedule 6.2, but not including any extensions of renewals thereof;
(c) Capitalized Lease Liabilities and indebtedness of the
Borrower or its Subsidiaries secured by security interests permitted by
Section 6.1(f) in an aggregate amount not to exceed $20,000,000 at any
time;
(d) indebtedness of Fluoroware in connection with the IDRB
Financing, including, without limitation, the indebtedness or
reimbursement obligations of Fluoroware with respect to the IDRB Letter
of Credit;
(e) indebtedness or reimbursement obligations of the
Borrower and/or any of its Subsidiaries with respect to any documentary
letter of credit facility in an amount not to exceed $250,000 now or
hereafter established by Norwest for the Borrower and/or any such
Subsidiary, including any present or future extension, renewal or
modification thereof permitted by Norwest;
(f) Subordinated Debt, or renewals thereof, provided that
(a) it is subordinated to the prior payment of all indebtedness,
reimbursement obligations and guaranties of the Borrower and its
Subsidiaries in favor of the Banks on terms and conditions approved in
writing by the Banks and (b) the aggregate amount of Subordinated Debt
at any one time outstanding does not exceed $12,000,000;
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(g) an unsecured irrevocable standby letter of credit issued
in the original amount of $1,669,918 by Norwest in favor of Firstar Bank
of Minnesota, National Association, for the account of Fluoroware PEI,
Inc., as the same is now and may hereafter be amended from time to time;
(h) an unsecured line of credit in an amount not to exceed
2,000,000 German Marks of Fluoroware GmbH in favor of BW-Bank, including
any present or future extension or renewal thereof (but not any increase
thereof);
(i) an unsecured line of credit in an amount not to exceed
2,000,000 German Marks of Fluoroware GmbH in favor of Commerzbank,
including any present or future extension of renewal thereof (but not
any increase thereof);
(j) an unsecured line of credit in an amount not to exceed
408,000,000 Japanese Yen of Fluoroware Valqua Japan, K.K. in favor of
Bank of Tokyo Mitsubishi, including any present or future extension or
renewal thereof (but not any increase thereof);
(k) an unsecured line of credit in an amount not to exceed
392,000,000 Japanese Yen of Fluoroware Valqua Japan, K.K. in favor of
Sumitomo Bank, including any present or future extension or renewal
thereof (but not any increase thereof);
(l) Rate Hedging Obligations covering notional amounts not
exceeding $10,000,000 in aggregate at any one time; and
(m) a line of credit in an amount not to exceed 5,000,000
Ringgits of Entegris Malaysia in favor of Malayan Bank Berhad including
any present or future extension or renewal thereof (but not any increase
thereof).
Section 6.3. Guaranties. The Borrower will not, and will not
permit any Subsidiary to, assume, guarantee, endorse or otherwise become
directly or contingently liable in connection with any obligations of any other
Person, except:
(a) guaranties of the Obligations arising hereunder;
(b) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(c) guaranties, endorsements and other direct or contingent
liabilities in connection with the obligations of other Persons in
existence on the Closing Date and listed in Schedule 6.3;
(d) a guaranty given by Fluoroware in favor of Norwest in
connection with the letter of credit permitted by Section 6.2(f).
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Section 6.4. Investments. The Borrower will not, and will not
permit any Subsidiary to, purchase or hold beneficially any stock or other
securities or evidences of indebtedness of, make or permit to exist any loans or
advances to, or create or acquire any Subsidiary or make any investment or
acquire any interest whatsoever in, any other Person, except:
(a) investments (either directly or through mutual funds) in
direct obligations of the United States of America or any agency or
instrumentality thereof whose obligations constitute the full faith and
credit obligations of the United States of America having a maturity of
one year or less, commercial paper issued by a U.S. corporation rated
"A-1" or "A-2" by Standard & Poors Corporation or "P-1" or "P-2" by
Moody's Investors Service, certificates of deposit or bankers'
acceptances having a maturity of one year or less issued by members of
the Federal Reserve System having deposits in excess of $100,000,000
(which certificates of deposit or bankers' acceptances are fully insured
by the Federal Deposit Insurance Corporation) and such other investments
as the Borrower shall request and the Banks shall approve in writing;
(b) any investment existing on the Closing Date by the
Borrower or any of its Subsidiaries in the stock of any Subsidiary or in
the stock of any Affiliate;
(c) loans and advances by a Subsidiary to the Borrower or
another Subsidiary of the Borrower;
(d) loans to officers and employees of the Borrower or any
of its Subsidiaries not exceeding at any one time an aggregate of
$500,000;
(e) travel advances to officers and employees of the
Borrower or any of its Subsidiaries or any other similar advances in the
ordinary course of business;
(f) advances in the form of progress payments, prepaid rent
or security deposits or any other similar advances in the ordinary
course of business; and
(g) the acquisition of the stock or assets of another Person
so long as:
(i) prior to each such acquisition, the Borrower has
submitted to the Agent financial projections
which establish that, after giving effect to
such acquisition:
(A) the Borrower and its Subsidiaries will
be in compliance with all covenants and
terms of this Agreement and the other
Loan Documents through the Maturity
Date, and
(B) the Leverage Ratio of the Borrower and
its Subsidiaries on a consolidated basis
will be not more than 2.50 to 1.00 at
all times through the Maturity Date, and
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(ii) after giving effect to each such acquisition:
(A) the acquired business of such Person is
in the same line of business as an
existing business of the Borrower or its
Subsidiaries,
(B) the Borrower and its Subsidiaries are in
compliance with all covenants and terms
of this Agreement and the other Loan
Documents at all times through the
Maturity Date,
(C) all consideration (whether in the form
of cash paid, indebtedness assumed or
otherwise) given by the Borrower and its
Subsidiaries for acquisitions permitted
under this Section 6.4(g) shall not
exceed (I) an aggregate amount of
$25,000,000 during the fiscal year in
which such acquisition occurs, and (II)
an aggregate amount of $75,000,000
during the period from the Closing Date
through the Maturity Date, and
(D) immediately after the closing of such
acquisition, the Leverage Ratio of the
Borrower and its Subsidiaries on a
consolidated basis is not more than 2.50
to 1.00.
Section 6.5. Restricted Payments. The Borrower will not,
during any fiscal year of the Borrower, pay any dividends or distributions
(other than dividends or distributions payable in shares of any stock of the
Borrower) on any shares of any class of stock of the Borrower or directly or
indirectly apply any assets of the Borrower to the redemption, retirement,
purchase or other acquisition of any shares of any class of stock of the
Borrower, except that the Borrower may apply its assets to purchase the
Borrower's issued and outstanding shares of common stock for retirement, if
after giving effect to any such purchase, the Borrower is in compliance with all
of the provisions of this Agreement.
Section 6.6. Sale or Transfer of Assets; Suspension of
Business Operations. The Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease, assign, transfer or otherwise dispose of all or a
substantial part of its assets (whether in one transaction or in a series of
transactions) to any other Person; provided, however, that the restrictions
contained in this Section 6.6 shall not apply to or prevent:
(a) the conveyance, lease or transfer by a Subsidiary of all
or part of its properties to the Borrower or to another wholly-owned
Subsidiary of the Borrower;
(b) sales, leases and assignments by the Borrower or any of
its Subsidiaries of its properties in the ordinary course of its
business; or
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(c) sales or leases by the Borrower or any of its
Subsidiaries of its surplus, obsolete or worn-out properties.
Section 6.7 Restrictions on Issuance and Sale of Subsidiary
Stock. The Borrower will not:
(a) permit any of its Subsidiaries to issue or sell any
shares of stock of any class of any Subsidiary to any other Person,
except for the purpose of qualifying directors or satisfying preemptive
rights or of paying a common stock dividend on, or splitting, common
stock of such Subsidiary; or
(b) sell, transfer or otherwise dispose of any shares of
stock of any class (except to a wholly owned Subsidiary of the Borrower
or to qualify directors) of any Subsidiary or permit any Subsidiary to
sell, transfer or otherwise dispose of (except to the Borrower or a
wholly owned Subsidiary of the Borrower or to qualify directors) any
shares of stock of any class of any other Subsidiary.
Notwithstanding the foregoing subsections (a) and (b) of this Section 6.7, the
Borrower may permit (i) any Subsidiary to issue such Subsidiary's stock to a
Person other than the Borrower or another Subsidiary in an aggregate amount not
to exceed ten percent (10%) of such Subsidiary's issued and outstanding stock,
and (ii) Nippon Valqua Industries Ltd. to own up to forty-nine percent (49%) of
the issued and outstanding stock of Nippon Fluoroware K.K.
Section 6.8. Consolidation and Merger; Asset Acquisitions. The
Borrower will not, and will not permit any of its Subsidiaries to, consolidate
with or merge into any Person, or permit any other Person to merge into it, or
acquire (in a transaction analogous in purpose or effect to a consolidation or
merger) all or substantially all the assets of any other Person, provided,
however, that the restrictions contained in this Section 6.8 shall not apply to
or prevent (i) the consolidation or merger of a Subsidiary with, or a conveyance
or transfer of its assets to, the Borrower (if the Borrower shall be the
continuing or surviving corporation) or (ii) the acquisition of assets of other
Persons permitted by Section 6.4(g).
Section 6.9 Sale and Leaseback. Except with respect to
property sold and lease backed by the Borrower or any of its Subsidiaries within
90 days of the acquisition of such property by the Borrower or such Subsidiary,
the Borrower will not, and will not permit any of its Subsidiaries to, enter
into any arrangement, directly or indirectly, with any other Person whereby the
Borrower or such Subsidiary shall sell or transfer any real or personal
property, whether now owned or hereafter acquired, and then or thereafter rent
or lease as lessee such property or any part thereof or any other property which
the Borrower or such Subsidiary intends to use for substantially the same
purpose or purposes as the property being sold or transferred, if, after giving
effect to any such sale and leaseback, the aggregate sales price for all such
property sold and leased back by the Borrower and its Subsidiaries from and
after the Closing Date would exceed $1,000,000 in the aggregate.
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Section 6.10 Subordinated Debt. The Borrower will not, and
will not permit any of its Subsidiaries to, (i) make any payment of, or acquire,
any Subordinated Debt except as expressly permitted by the terms of this
Agreement and the subordination provisions applicable to such Subordinated Debt;
(iii) amend or cancel the subordination provisions of such Subordinated Debt;
(iv) take or omit to take any action whereby the subordination of such
Subordinated Debt or any part thereof might be terminated, impaired or adversely
affected; or (v) omit to give the Agent prompt written notice of any default
under any agreement or instrument relating to such Subordinated Debt by reason
whereof such Subordinated Debt might become or be declared to be immediately due
and payable.
Section 6.11. Restrictions on Nature of Business. The Borrower
will not, and will not permit any of its Subsidiaries to, engage in any line of
business materially different from that in which it is presently engaged and
will not purchase, lease or otherwise acquire assets not related to its
business.
Section 6.12 Prohibition of Entering into Negative Pledge
Arrangements. The Borrower will not, and will not permit any of its Subsidiaries
to, enter into any agreement or covenant with any Person (other than with the
Banks, with Norwest, with North Atlantic Life Insurance Company of America in
connection with the indebtedness scheduled on Schedule 6.1, with the First
National Bank of Chaska in connection with the indebtedness scheduled on
Schedule 6.1, with the Massachusetts Mutual in connection with the indebtedness
scheduled on Schedule 6.1, with Northern Life Insurance Company and Bankers
Security Life Insurance Company with respect to indebtedness scheduled on
Schedule 6.1, with American Family Life Insurance Company with respect to
indebtedness scheduled on Schedule 6.1, with Marubeni Corporation with respect
to indebtedness scheduled on Schedule 6.1, and with U.S. Bank National
Association with respect to indebtedness scheduled on Schedule 6.1) that
prohibits the Borrower or any of its Subsidiaries from creating, incurring,
assuming or suffering to exist mortgages, deeds of trust or other encumbrances
on any of its assets.
Section 6.13. Accounting. The Borrower will not, and will not
permit any of its Subsidiaries to, adopt any material change in accounting
principles, other than as required by GAAP, and will not adopt, permit or
consent to any change in its fiscal year.
Section 6.14. Hazardous Substances. The Borrower will not, and
will not permit any of its Subsidiaries to, cause or permit any Hazardous
Substances to be disposed of in any manner which might result in any material
liability to the Borrower or such Subsidiary, on, under or at any real property
which is operated by the Borrower or such Subsidiary or in which the Borrower or
such Subsidiary has any interest.
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ARTICLE VII
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
Section 7.1. Events of Default. "Event of Default", wherever
used herein, means any one of the following events:
(a) default in the payment of any principal of any Revolving
Note when it becomes due and payable; or
(b) default in the payment of any reimbursement obligation
in respect of any Letter of Credit when it becomes due and payable; or
(c) default in the payment of any interest on any Revolving
Note when it becomes due and payable or any fees, costs or expenses
required to be paid by the Borrower or either of the Guarantors under
this Agreement or any other Loan Document when the same becomes due and
payable; or
(d) default in the performance, or breach, of any covenant
or agreement on the part of the Borrower contained in Sections 5.8
through 5.11 or in Article VI; or
(e) default in the performance, or breach, of any covenant
or agreement of the Borrower in this Agreement (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere in
this Section 7.1 specifically dealt with) and the continuance of such
default or breach for a period of thirty (30) calendar days after the
Borrower has or should reasonably have had notice thereof; or
(f) default in the performance, or breach, of any covenant
or agreement of the Borrower or either of the Guarantors in any Loan
Document other than this Agreement (other than a covenant or agreement a
default in whose performance or whose breach is elsewhere in this
Section 7.1 specifically dealt with) and the continuance of such default
or breach beyond the applicable period of grace, if any specified in
such Loan Document; or
(g) the Borrower or any of its Subsidiaries shall be or
become insolvent, or admit in writing its inability to pay its debts as
they mature, or make an assignment for the benefit of creditors; or the
Borrower or any of its Subsidiaries shall apply for or consent to the
appointment of any receiver, trustee, or similar officer for it or for
all or any substantial part of its property; or such receiver, trustee
or similar officer shall be appointed without the application or consent
of the Borrower or any such Subsidiary, as applicable; or the Borrower
or any of its Subsidiaries shall institute (by petition, application,
answer, consent or otherwise) any insolvency, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or similar
proceeding relating to it under the laws of any jurisdiction; or any
such proceeding shall be instituted (by petition, application or
otherwise) against the Borrower or any of its
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Subsidiaries; or any judgment, writ, warrant of attachment or execution
or similar process shall be issued or levied against a substantial part
of the property of the Borrower or any of its Subsidiaries and such
judgment, writ, or similar process shall not be released, vacated or
fully bonded within thirty (30) calendar days after its issue or levy;
or
(h) a petition naming the Borrower or any of its
Subsidiaries as debtor shall be filed under the United States Bankruptcy
Code; or
(i) any representation or warranty made by the Borrower or
any of its Subsidiaries in any Loan Document or by the Borrower or any
of its Subsidiaries (or any of the officers of any such entity) in any
request for a Borrowing, or in any other certificate, instrument, or
statement contemplated by or made or delivered pursuant to or in
connection with any Loan Document, shall prove to have been incorrect in
any material respect when made; or
(j) the rendering against the Borrower or any of its
Subsidiaries of a final judgment, decree or order for the payment of
money in excess of $1,000,000 (unless the payment of such judgment is
fully insured) and the continuance of such judgment, decree or order
unsatisfied and in effect for any period of thirty (30) consecutive
calendar days without a stay of execution; or
(k) a default under any bond, debenture, note,
securitization agreement or other evidence of indebtedness or similar
obligation of the Borrower or any of its Subsidiaries (other than a
default whose breach is elsewhere in this Section 7.1 specifically dealt
with) or under any indenture or other instrument under which any such
evidence of indebtedness or similar obligation has been issued or by
which it is governed and the expiration of the applicable period of
grace, if any, specified in such evidence of indebtedness, indenture or
other instrument; or
(l) any Reportable Event, which the Agent determines in good
faith could reasonably be expected to constitute grounds for the
termination of any Plan or for the appointment by the appropriate United
States District Court of a trustee to administer any Plan, shall have
occurred and be continuing thirty (30) days after written notice to such
effect shall have been given to the Borrower or any of its Subsidiaries
by the Agent; or any Plan shall have been terminated (other than a
standard termination which is not reasonably expected to have a Material
Adverse Effect), or a trustee shall have been appointed by an
appropriate United States District Court to administer any Plan, or the
Pension Benefit Guaranty Corporation shall have instituted proceedings
to terminate any Plan or to appoint a trustee to administer any Plan; or
(m) the Borrower or any of its Subsidiaries shall liquidate,
dissolve, terminate or suspend its business operations or otherwise fail
to operate its business in the ordinary course, or shall sell all or
substantially all of its assets; or
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(n) each of the Guarantors shall repudiate, purport to
revoke or fail to perform any of such Guarantor's obligations under any
Loan Document to which such Guarantor is a party; or
(o) a Change of Control shall occur with respect to the
Borrower; or
(p) the Borrower shall repudiate, purport to revoke, or fail
to perform any of such Borrower's obligations under any guaranty given
by the Borrower to the Banks or to any of the Banks (other than a
repudiation, purported revocation or failure which is elsewhere in this
Section 7.1 specifically dealt with); or
(q) An Event of Default (as defined therein) shall occur and
be continuing under IDRB Letter of Credit Reimbursement Agreement; or
(r) The Borrower or any of its Subsidiaries shall make any
payment of Subordinated Debt which is prohibited by the applicable
subordination provisions or shall consent to or participate in any act
whatsoever if such act is a violation of any of the applicable
subordination provisions.
Section 7.2. Rights and Remedies. Upon the occurrence of an
Event of Default or at any time thereafter until such Event of Default is cured
or waived to the written satisfaction of the Required Banks, the Agent or the
Required Banks may (and, upon written request of the Required Banks the Agent
shall) exercise any or all of the following rights and remedies:
(a) by notice to the Borrower, declare the Revolving
Commitments to be terminated, whereupon the same shall forthwith
terminate;
(b) by notice to the Borrower, declare the entire unpaid
principal amount of the Revolving Notes, all interest accrued and unpaid
thereon, and all other Obligations to be forthwith due and payable,
whereupon the Revolving Notes, all such accrued interest and all such
other Obligations shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) without notice to the Borrower and without further
action, apply any and all monies owing by any Bank to the Borrower or to
any of its Subsidiaries to the payment of the Revolving Notes, including
interest accrued thereon, and to payment to payment of all other
Obligations then owing by the Borrower;
(d) exercise and enforce the rights and remedies available
to the Agent, the Banks or to any Bank under any Loan Document; and
(e) exercise any other rights and remedies available to the
Agent, the Banks or to any Bank by law or agreement.
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Notwithstanding the foregoing, upon the occurrence of an Event of Default
described in Section 7.1(h) hereof, the entire unpaid principal amount of the
Revolving Notes, all interest accrued and unpaid thereon, and all other amounts
payable under this Agreement shall be immediately due and payable without
presentment, demand, protest or notice of any kind.
ARTICLE VIII
AGREEMENT AMONG BANKS AND AGENT
Section 8.1. Authorization; Powers. Each Bank irrevocably
appoints and authorizes the Agent to act as administrative agent for and on
behalf of such Bank to the extent provided herein, in any Loan Documents or in
any other document or instrument delivered hereunder or in connection herewith,
and to take such other actions as may be reasonably incidental thereto. The
Agent agrees to act as administrative agent for each Bank upon the express
conditions contained in this Article VIII, but in no event shall the Agent
constitute a fiduciary of any Bank, nor shall the Agent have any fiduciary
responsibilities in respect of any Bank. In furtherance of the foregoing, and
not in limitation thereof, each Bank irrevocably (a) authorizes the Agent to
execute and deliver and perform those obligations under each of the Loan
Documents to which the Agent is a party as are specifically delegated to the
Agent, and to exercise all rights, powers and remedies as may be specifically
delegated hereunder or thereunder, together with such additional powers as may
be reasonably incidental thereto, (b) appoints the Agent as nominal beneficiary
or nominal secured party, as the case may be, under the Loan Documents and all
related UCC financing statements (if and to the extent collateral security is
granted with respect to the Obligations), and (c) authorizes the Agent to act as
agent of and for such Bank for purposes of holding, perfecting and disposing of
collateral under the Loan Documents (if and to the extent collateral security is
granted with respect to the Obligations). As to any matters not expressly
provided for by the Loan Documents, the Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Required Banks or, if so required pursuant
to Section 9.2, upon the instructions of all Banks; provided, however, that
except for action expressly required of the Agent hereunder, the Agent shall in
all cases be fully justified in failing or refusing to act hereunder unless it
shall 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, and the Agent shall not in any event be
required to take any action which is contrary to the Loan Documents or
applicable law.
Section 8.2. Application of Proceeds. The Agent, after
deduction of any costs of collection, as provided in Section 8.5, shall remit to
each Bank (to the extent a Bank is to share therein) that Bank's pro rata share
of all payments of principal, interest and fees payable hereunder in accordance
with such Bank's appropriate Percentage; provided, however, that all payments
received after the termination of the Revolving Commitments following the
occurrence of an Event of Default, after application to the costs and expenses
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incurred by the Agent or any Bank in collection thereof (as contemplated in
Section 8.5), shall be allocated to the Banks in accordance with their Default
Percentages. Each Bank's interest under the Loan Documents shall be payable
solely from payments, collections and proceeds actually received by the Agent
under the Loan Documents; and the Agent's only liability to a Bank with respect
to any such payments, collections and proceeds shall be to account for such
Bank's Percentage (or Default Percentage, as the case may be) of such payments,
collections and proceeds in accordance with this Agreement. If the Agent is
required for any reason to refund any such payments, collections or proceeds,
each Bank will refund to the Agent, upon demand, its Percentage (or Default
Percentage, as the case may be) of such payments, collections or proceeds,
together with its Percentage (or Default Percentage, as the case may be) of
interest or penalties, if any, payable by the Agent in connection with such
refund. If any Bank has wrongfully refused to fund its Percentage of any
Borrowing, or if the outstanding principal balance of the Advances made by any
Bank is for any other reason less than its respective Percentage of the
aggregate principal balance of all Advances, the Agent may remit payments
received by it to the other Banks until such payments have reduced the aggregate
amounts owed by the Borrower to the extent that the aggregate amount of the
Advances owing to such Bank hereunder are equal to its Percentage of the
aggregate amounts of the Advances owing to all of the Banks hereunder. The
foregoing provision is intended only to set forth certain rules for the
application of payments, proceeds and collections in the event that a Bank has
breached its obligations hereunder and shall not be deemed to excuse any Bank
from such obligations.
Section 8.3. Exculpation. The Agent shall not be liable for
any action taken or omitted to be taken by the Agent in connection with the Loan
Documents, except for its own gross negligence or willful misconduct. The Agent
shall be entitled to rely upon advice of counsel concerning legal matters, the
advice of independent public accountants with respect to accounting matters and
advice of other experts as to any other matters and upon any Loan Document and
any schedule, certificate, statement, report, notice or other writing which it
reasonably believes to be genuine or to have been presented by a proper Person.
Neither the Agent nor any of its directors, officers, employees or agents shall
be responsible or in any way liable for (a) any recitals, representations or
warranties contained in, or for the execution, validity, genuineness,
effectiveness or enforceability of any Loan Document, or any other instrument or
document delivered hereunder or in connection herewith, (b) the validity,
genuineness, perfection, effectiveness, enforceability, existence, value of
enforcement of any collateral (if and to the extent collateral security is
granted with respect to the Obligations) or (c) any action taken or omitted by
it. The designation of Norwest as Agent hereunder shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations
upon, Norwest in its individual capacity as Bank hereunder.
Section 8.4. Use of the Term "Agent". The term "Agent" is used
herein in reference to the Agent merely as a matter of custom. It is intended to
reflect only an administrative relationship between the Agent and the Banks, in
each case as independent contracting parties. However, the obligations of the
Agent shall be limited to those expressly
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set forth herein and in no event shall the use of such term create or imply any
fiduciary relationship or any other obligation arising under the general law of
agency.
Section 8.5. Reimbursement for Costs and Expenses. All
payments, collections and proceeds received or effected by the Agent may be
applied first to pay or reimburse the Agent for all reasonable costs and
expenses at any time incurred by or imposed upon the Agent in connection with
this Agreement or any other Loan Document (including but not limited to all
reasonable attorney's fees (including allocated costs of in-house counsel),
foreclosure expenses and advances made to protect the security of any collateral
(if and to the extent collateral security is granted with respect to the
Obligations), but excluding any costs, expenses, damages or liabilities arising
from the gross negligence or willful misconduct of the Agent). If the Agent does
not receive payments, collections or proceeds sufficient to cover any such costs
and expenses within five (5) days after their incurrence or imposition, each
Bank shall, upon demand, remit to the Agent such Bank's Percentage of the
difference between (i) such costs and expenses and (ii) such payments,
collections and proceeds, together with interest on such amount for each day
following the thirtieth day after demand therefor until so remitted at a rate
equal to the Federal Funds Rate for each such day.
Section 8.6. Payments Received Directly by Banks. If any Bank
shall obtain any payment or other recovery (whether voluntary, involuntary, by
application of offset or otherwise) on account of the Revolving Facility or on
account of any fees under this Agreement (other than through distributions made
in accordance with Section 8.2 hereof) in excess of such Bank's applicable
Percentage with respect to the Revolving Facility (or such Bank's Default
Percentage, if applicable), such Bank shall promptly give notice of such fact to
the Agent and shall promptly remit to the Agent such amount as shall be
necessary to cause the remitting Bank to share such excess payment or other
recovery ratably with each of the Banks in accordance with their respective
Percentages, (or Default Percentages, as the case may be) together with interest
for each day on such amount until so remitted at a rate equal to the Federal
Funds Rate for each such day; provided, however, that if all or any portion of
the excess payment or other recovery is thereafter recovered from such remitting
Bank or holder, the remittance shall be restored to the extent of such recovery.
Section 8.7. Indemnification. Each Bank severally (but not
jointly) hereby agrees to indemnify and hold harmless the Agent, as well as the
Agent's agents, employees, officers and directors, ratably according to their
respective Percentages from and against any and all losses, liabilities
(including liabilities for penalties), actions, suits, judgment, demands,
damages, costs, disbursements, or expenses (including attorneys' fees and
expenses)(including allocated costs of in-house counsel)) of any kind or nature
whatsoever, which are imposed on, incurred by, or asserted against the Agent or
its agents, employees, officers or directors in any way relating to or arising
out of the Loan Documents, or as a result of any action taken or omitted to be
taken by the Agent; provided, however, that no Bank shall be liable for any
portion of any such losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, costs disbursements, or expenses
resulting from the gross negligence or willful misconduct of the Agent.
Notwithstanding any
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other provision of the Loan Documents, the Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall be indemnified
to its satisfaction by the Banks against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
Section 8.8. Agent and Affiliates. Norwest shall have the same
rights and powers in its capacity as a Bank hereunder as any other Bank, and may
exercise or refrain from exercising the same as though it were not the Agent,
and Norwest and its affiliates may accept deposits from and generally engage in
any kind of business with the Borrower and its Subsidiaries or any affiliate of
the Borrower and its Subsidiaries as fully as if Norwest were not the Agent
hereunder.
Section 8.9. Credit Investigation. Each Bank acknowledges that
it has made such inquiries and taken such care on its own behalf as would have
been the case had its Revolving Commitment been granted and its Advances made
directly by such Bank to the Borrower without the intervention of the Agent or
any other Bank. Each Bank agrees and acknowledges that the Agent makes no
representations or warranties about the creditworthiness of the Borrower or any
other party to this Agreement or with respect to the legality, validity,
sufficiency or enforceability of this Agreement, any Loan Document or any other
instrument or document delivered hereunder or in connection herewith.
Section 8.10. Defaults. The Agent shall have no duty to inquire
into any performance or failure to perform by the Borrower or its Subsidiaries
and shall not be deemed to have knowledge of the occurrence of a Default or an
Event of Default (other than under Sections 7.1(a), 7.1(b) or 7.1(c)) hereof
unless the Agent has received notice from a Bank or the Borrower specifying the
occurrence of such Default or Event of Default. In the event that the Agent
receives such a notice of the occurrence of a Default or an Event of Default,
the Agent shall give prompt notice thereof to the Banks. In the event of any
Default, the Agent shall (subject to Section 8.7 hereof) (a) in the case of a
Default that constitutes an Event of Default, not take any the actions referred
to in Section 7.2(b) hereof unless so directed by the Required Banks, and (b) in
the case of any Default, take such actions with respect to such Default as shall
be directed by the Required Banks; provided that, unless and until the Agent
shall have received such directions, the Agent may take any action, or refrain
from taking any action, with respect to such Default as it shall deem advisable
in the best interest of the Banks.
Section 8.11. Obligations Several. The obligations of each Bank
hereunder are the several obligations of such Bank, and neither any Bank nor the
Agent shall be responsible for the obligations of any other Bank hereunder, nor
will the failure by the Agent or any Bank to perform any of its obligations
hereunder relieve the Agent or any other Bank from the performance of its
respective obligations hereunder. Nothing contained in this Agreement, and no
action taken by any Bank or the Agent pursuant hereto or in connection herewith
or pursuant to or in connection with the Loan Documents shall be deemed to
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constitute the Banks, together or with or without the Agent, as a partnership,
association, joint venture, or other entity.
Section 8.12. Sale or Assignment; Addition of Banks. Except as
permitted under the terms and conditions of this Section 8.12 or, with respect
to participations, under Section 8.13, no Bank may sell, assign or transfer its
rights or obligations under this Agreement or its interest in any Revolving
Note. Any Bank, at any time upon at least five (5) Business Days' prior written
notice to the Agent and the Borrower (unless the Agent and the Borrower consent
to a shorter period of time), may assign all or a portion (provided such portion
is not less than $5,000,000) of such Bank's Revolving Note, Advances and
Revolving Commitment to a domestic or foreign bank (having a branch office in
the United States), an insurance company or other financial institution (an
"Applicant") on any date (the "Adjustment Date") selected by such Bank, but only
so long as the Borrower and the Agent shall have provided their prior written
approval of such proposed Applicant. Notwithstanding the foregoing, (i) the
Borrower will not unreasonably withhold their consent to any such assignment,
(ii) no such consent of the Borrower shall be required after the occurrence and
during the continuance of an Event of Default, and (iii) no such consent of the
Borrower or the Agent shall be required in connection with an assignment to the
Federal Reserve Bank for purposes of satisfying a Bank's capital requirements.
Upon receipt of such approval and to confirm the status of each additional Bank
as a party to this Agreement and to evidence the assignment in accordance
herewith:
(a) the Agent, the Borrower (if the Borrower's consent is
required), the assigning Bank and such Applicant shall, on or before the
Adjustment Date, execute and deliver to the Agent an Assignment
Certificate in substantially the form of Exhibit G (an "Assignment
Certificate");
(b) if requested by the Agent, the Borrower will execute and
deliver to the Agent, for delivery by the Agent in accordance with the
terms of the Assignment Certificate, (i) a new Revolving Note payable to
the order of the Applicant in the amount corresponding to the applicable
Revolving Commitment acquired by such Applicant and (ii) a new Revolving
Note payable to the order of the assigning Bank in the amount
corresponding to the retained Revolving Commitment. Such new Revolving
Notes shall be in an aggregate principal amount equal to the principal
amount of the Revolving Notes to be replaced by such new Revolving
Notes, shall be dated the effective date of such assignment and shall
otherwise be in the form of the Revolving Note to be replaced thereby.
Such new Revolving Notes shall be issued in substitution for, but not in
satisfaction or payment of, the Revolving Note being replaced thereby
and such new Revolving Notes shall be treated as Revolving Notes for
purposes of this Agreement; and
(c) the assigning Bank shall pay to the Agent an
administrative fee of $3,000.
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Upon the execution and delivery of such Assignment Certificate and such new
Revolving Notes, and effective as of the effective date thereof (i) this
Agreement shall be deemed to be amended to the extent, and only to the extent,
necessary to reflect the addition of such additional Bank and the resulting
adjustment of the Percentages arising therefrom, (ii) the assigning Bank shall
be relieved of all obligations hereunder to the extent of the reduction of the
assigning Bank's Percentage, and (iii) the Applicant shall become a party hereto
and shall be entitled to all rights, benefits and privileges accorded to a Bank
herein and in each other Loan Document or other document or instrument executed
pursuant hereto and subject to all obligations of a Bank hereunder, including,
without limitation, the right to approve or disapprove actions which, in
accordance with the terms hereof, require the approval of the Required Banks or
all Banks. In order to facilitate the addition of additional Banks hereto, the
Borrower (subject to their approval rights hereunder, if any) and the Banks
shall cooperate fully with the Agent in connection therewith and shall provide
all reasonable assistance requested by the Agent relating thereto, including,
without limitation, the furnishing of such written materials and financial
information regarding the Borrower as the Agent may reasonably request, the
execution of such documents as the Agent may reasonably request with respect
thereto, and the participation by officers of the Borrower, and the Banks in a
meeting or teleconference call with any Applicant upon the request of the Agent.
Section 8.13. Participation. In addition to the rights granted
in Section 8.12, each Bank may grant participations in all or a portion of its
Revolving Note, Advances and Revolving Commitment to any domestic or foreign
commercial bank (having a branch office in the United States), insurance
company, financial institution or an affiliate of such Bank. No holder of any
such participation shall be entitled to require any Bank to take or omit to take
any action hereunder. The Banks shall not, as among the Borrower, the Agent and
the Banks, be relieved of any of their respective obligations hereunder as a
result of any such granting of a participation. The Borrower hereby acknowledges
and agrees that any participation described in this Section 8.13 may rely upon,
and possess all rights under, any opinions, certificates, or other instruments
or documents delivered under or in connection with any Loan Document. Except as
set forth in this Section 8.13, no Bank may grant any participation in its
Revolving Note, Advances or Revolving Commitment.
Section 8.14. Withholding Tax Exemption. At least five (5)
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States of America, or a state thereof, agrees that it
will deliver to the Borrower and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Bank is entitled to receive payments under this Agreement and the
Revolving Notes without deduction or withholding of any United States federal
income taxes. Each Bank which so delivers a Form 1001 or 4224 further undertakes
to deliver to the Borrower and the Agent two additional copies of such form (or
a successor form) on or before the date that such form expires (currently, three
successive calendar years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or
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extensions or renewals thereof as may be reasonably requested by the Borrower or
the Agent, in each case certifying that such Bank is entitled to receive
payments under this Agreement and the Revolving Notes without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to it and
such Bank advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
Section 8.15. Borrower not a Beneficiary or Party. Except with
respect to the limitation of liability applicable to the Banks under Section
8.11 and the Borrower's right to approve additional Banks in accordance with
Section 8.12, the provisions and agreements in this Article VIII are solely
among the Banks and the Agent and the Borrower shall not be considered a party
thereto or a beneficiary thereof.
ARTICLE IX
MISCELLANEOUS
Section 9.1. No Waiver; Cumulative Remedies. No failure or
delay on the part of the Agent or any Bank in exercising any right, power or
remedy under the Loan Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
under the Loan Documents. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided by law.
Section 9.2. Amendments, Requested Waivers, Etc. No amendment,
modification, termination or waiver of any provision of any Loan Document or
consent to any departure by the Borrower or either of the Guarantors therefrom
shall be effective unless the same shall be in writing and signed by the
Required Banks and, if the rights or duties of the Agent are affected thereby,
by the Agent; provided that no amendment, modification, termination, waiver or
consent shall do any of the following unless the same shall be in writing and
signed by all Banks: (a) change the amount of any Revolving Commitment (except
as permitted in accordance with Section 8.12), (b) increase the Revolving
Commitment Amount, (c) reduce the amount of any principal of or interest due on
any Advances or any fees payable to the Banks hereunder, (d) postpone any date
fixed for any payment of principal of or interest on any outstanding Advances or
any fees payable to the Banks hereunder, (e) change the definition of "Required
Banks," (f) amend this Section 9.2 or any other provision of this Agreement
requiring the consent or other action of the Required Banks or all Banks, (g)
release the Guaranties or (h) release, subordinate or terminate any security
interest in or mortgage lien on any collateral (if and to the extent collateral
security is granted with respect to the Obligations). Any waiver or consent
given hereunder shall be effective only in the specific instance and for the
specific purpose for
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which given. No notice to or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
Section 9.3. Addresses for Notices, Etc. Except as otherwise
expressly provided herein, all notices, requests, demands and other
communications provided for under the Loan Documents shall be in writing and
mailed or delivered to the applicable parties at their respective addresses set
forth on the execution pages hereto, or, as to each party, at such other address
as shall be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 9.3. All such notices,
requests, demands and other communications, when delivered, shall be effective
upon actual delivery and when mailed, shall be effective when sent by nationally
recognized overnight mail courier or delivery service, addressed as aforesaid,
except that notices or requests to the Agent or any Bank pursuant to any of the
provisions of Article II shall not be effective until received by the Agent or
such Bank.
Section 9.4. Costs and Expenses. The Borrower will reimburse
the Agent for (a) any and all reasonable out-of-pocket costs and expenses,
including without limitation reasonable attorneys' fees and expenses (including
allocated costs of in-house counsel), lien and UCC searches, title and recording
expenses and other similar expenses, paid or incurred by the Agent in connection
with the preparation, filing or recording of the Loan Documents and any other
document or agreement related hereto or thereto, and the transactions
contemplated hereby (which amount shall be paid on the Closing Date or as soon
thereafter as demand is made therefor) and the negotiation of any amendments,
modifications or extensions to or of any of the foregoing documents, instruments
or agreements and the preparation of any and all documents necessary or
desirable to effect such amendments, modifications or extensions, (b) customary
transaction fees of the Agent incurred in connection with the loans contemplated
hereby, (c) reasonable fees in connection with any audits or inspections by the
Agent of any collateral (if and to the extent collateral security is granted
with respect to the Obligations) or the operations or business of the Borrower
and/or its Subsidiaries, whether conducted at the premises of the Borrower
and/or its Subsidiaries or at the Agent's premises, and (d) any and all other
reasonable out-of-pocket costs and expenses incurred by the Agent in connection
with any of the transactions contemplated hereby. The Borrower will reimburse
the Agent and each Bank for any and all costs and expenses incurred by the Agent
or any Bank in connection with the enforcement of any of the rights or remedies
of the Agent or the Banks under any of the Loan Documents or under applicable
law, whether or not suit is filed with respect thereto.
Section 9.5. Indemnity. In addition to the payment of expenses
pursuant to Section 9.4, the Borrower agrees to indemnify, defend and hold
harmless the Agent, each Bank and each of their respective participants, parent
corporations, subsidiary corporations, affiliated corporations, successor
corporations, and all present and future officers, directors, employees and
agents (the "Indemnitees"), from and against (i) any claim, loss or damage to
which any Indemnitee may be subjected as a result of any past, present or future
existence, use, handling, storage, transportation or disposal of any Hazardous
Substance by the
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Borrower or any of its Subsidiaries or with respect to any property owned,
leased or controlled by the Borrower or any of its Subsidiaries, (ii) any and
all transfer taxes, documentary taxes, assessments or charges made by any
governmental authority (excluding income or gross receipts taxes) by reason of
the execution and delivery of this Agreement and the other Loan Documents or the
making of any Advances and (iii) any and all liabilities, losses, damages,
penalties, judgments, suits, claims, costs and expenses of any kind or nature
whatsoever (including, without limitation, the reasonable fees and disbursements
of counsel) in connection with any investigative, administrative or judicial
proceedings, whether or not such Indemnitee shall be designated a party thereto,
which may be imposed on, incurred by or asserted against such Indemnitee, in any
manner relating to or arising out of or in connection with, the making of any
Advances or entering into this Agreement or any other Loan Documents or the use
or intended use of the proceeds of the Advances, excepting, however, from the
foregoing any such liabilities, losses, damages, penalties, judgments, suits,
claims, costs and expenses resulting solely from the willful misconduct or gross
negligence of any Indemnitee. If any investigative, judicial or administrative
proceeding arising from any of the foregoing is brought against any Indemnitee,
upon request of such Indemnitee, the Borrower, or counsel designated by the
Borrower and satisfactory to the Indemnitee, will resist and defend such action,
suit or proceeding to the extent and in the manner directed by the Indemnitee,
at the Borrower's sole cost and expense. Each Indemnitee will use its best
efforts to cooperate in the defense of any such action, suit or proceeding. If
the foregoing undertaking to indemnify, defend and hold harmless may be held to
be unenforceable because it violates any law or public policy, the Borrower
shall nevertheless make the maximum contribution to the payment and satisfaction
of each of the indemnified liabilities contemplated hereby which is permissible
under applicable law. The obligations of the Borrower under this Section 9.5
shall survive termination of this Agreement and the discharge of the
Obligations.
Section 9.6. Execution in Counterparts. This Agreement and
other Loan Documents may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
Section 9.7. Governing Law; Jurisdiction; Waiver of Jury
Trial.
(a) Governing Law. The Loan Documents shall be governed by,
and construed in accordance with, the laws of the State of Minnesota,
except to the extent the law of any other jurisdiction applies as to the
perfection or enforcement of the any security interest in any collateral
(if and to the extend collateral security is granted with respect to the
Obligations) and except to the extent expressly provided to the contrary
in any Loan Document.
(b) Jurisdiction. The Borrower, the Agent and the Banks
hereby irrevocably submit to the jurisdiction of any state or federal
court sitting in the State of Minnesota in any action or proceeding
arising out of or relating to this Agreement
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or any of the other Loan Documents, and the Borrower, the Agent and the
Banks hereby irrevocably agree that all claims in respect of such action
or proceeding may be heard and determined in such state or federal
court. The Borrower, the Agent and the Banks hereby irrevocably waive,
to the fullest extent they may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. The
Borrower agrees that a final judgment in any such action or proceeding
may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Section 9.7(b) shall
affect the right of the Agent or any Bank to serve legal process in any
other manner permitted by law or affect the right of the Agent or any
Bank to bring any action or proceeding against the Borrower or any of
its Subsidiaries or the property of the Borrower or any of its
Subsidiaries in the courts of other jurisdictions.
(c) WAIVER OF JURY TRIAL. THE BORROWER, THE BANKS AND THE
AGENT HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.
Section 9.8. Integration; Inconsistency. This Agreement,
together with the Loan Documents, comprise the final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with
respect to such subject matter, superseding all prior oral or written
understandings. If any provision of a Loan Document is inconsistent with or
conflicts with a comparable or similar provision appearing in this Agreement,
the comparable or similar provision in this Agreement shall govern.
Section 9.9. Agreement Effectiveness. This Agreement shall
become effective upon delivery of fully executed counterparts hereof to each of
the parties hereto.
Section 9.10. Advice from Independent Counsel. The parties
hereto understand that this Agreement is a legally binding agreement that may
affect such party's rights. Each party hereto represents to the other that it
has received legal advice from counsel of its choice regarding the meaning and
legal significance of this Agreement and that it is satisfied with its legal
counsel and the advice received from it.
Section 9.11. Binding Effect; No Assignment by Borrower. This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Banks, the Agent and their respective successors and assigns; provided, however,
the Borrower may assign any or all of its rights or obligations hereunder or any
of its interest herein without the prior written consent of all Banks.
Section 9.12. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
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Section 9.13. Headings. Article and Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
[Remainder of this page intentionally left blank;
signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
Address: ENTEGRIS, INC.
3500 Lyman Boulevard
Chaska, Minnesota 55318
Attn: John Villas By /s/ Stan Geyer
Telecopy No. (612) 556-8644 --------------------------------------
Its President/Chief Executive Officer
----------------------------------
And
By /s/ Del Jensen
--------------------------------------
Its Executive Vice President
----------------------------------
Address: NORWEST BANK MINNESOTA,
7900 Xerxes Avenue South NATIONAL ASSOCIATION, as Bank and
Bloomington, Minnesota 55431-2206 as Agent
Attn: Brad Sullivan
Telecopy No. (612) 316-4203
By /s/ Brad Sullivan
--------------------------------------
Its Portfolio Manager/AVP
----------------------------------
Revolving Commitment: $15,000,000
Percentage: 50%
Address: HARRIS TRUST AND SAVINGS BANK
111 West Monroe
P.O. Box 755
Chicago, Illinois 60690 By /s/ Catherine Ciolek
Attn: Catherine C. Ciolek --------------------------------------
Telecopy No. (312) 293-5040 Its Vice President
----------------------------------
Revolving Commitment: $15,000,000
Percentage: 50%