EXHIBIT 10.1
U.S. $190,000,000
CREDIT AGREEMENT,
dated as of September 30, 1996,
among
BRAND SCAFFOLD SERVICES, INC.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
BANK OF AMERICA ILLINOIS,
as the Issuer,
and
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
as the Administrative Agent for the Lenders.
ARRANGED BY
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
and
BA SECURITIES, INC.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 30, 1996, is among Brand
Scaffold Services, Inc., a Delaware corporation (the "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), DLJ CAPITAL FUNDING, INC. ("DLJ"), as syndication agent (the
"Syndication Agent") for the Lenders, BANK OF AMERICA ILLINOIS, as letter of
credit issuer (the "Issuer"), and BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION ("BofA"), as administrative agent (the "Administrative Agent") for
the Lenders (the Syndication Agent and the Administrative Agent are sometimes
referred to herein as the "Agents").
W I T N E S S E T H:
WHEREAS, DLJ Merchant Banking Partners, L.P., DLJ International
Partners, C.V., DLJ Offshore Partners, C.V., DLJ Merchant Banking Funding, Inc.
and Carlisle-Brand Investors, L.P. (collectively, the "Purchasers") shall
acquire an 80.1% beneficial common equity interest in Rust Scaffold Services
Inc., a Delaware corporation ("Rust"), from Rust Industrial Services, Inc., a
Delaware corporation (the "Seller"), with the Seller retaining a 19.9%
beneficial common equity interest in Rust (such acquisition and all related
transactions, including repayment of certain existing indebtedness of Rust, the
"Acquisition");
WHEREAS, the Transaction will be structured as a merger (the "Merger")
of Rust into the Borrower, a newly-formed company, 100% of the common stock of
which will be held by DLJ Brand Holdings, Inc., a newly-formed Delaware
corporation ("Holdco"), with the Borrower to be the survivor of the Merger;
WHEREAS, in connection with the Acquisition and the Merger and,
pursuant to the Acquisition Documents, the following capital-raising
transactions will occur:
(a) the issuance and sale by the Borrower to the Purchasers
of 80.1% of the Borrower's Preferred Stock for gross cash proceeds of
not less than $20,025,000 (the "Preferred Stock Sale"); and
(b) the issuance and sale by Holdco to the Purchasers and
their affiliates of 80.1% of the common stock of Holdco for gross cash
proceeds of not less than $10,012,500, which cash proceeds will be
contributed by Holdco to the Borrower (collectively, the "Equity
Issuance and Contribution").
WHEREAS, in connection with the Merger, and as a portion of the merger
consideration to be paid to the Seller, (i) Holdco will issue to the Seller
19.9% of Holdco's common stock (valued at no less than $2,487,500), (ii) the
Borrower will issue to the Seller 19.9% of the Borrower's Preferred Stock
(valued at no less than $4,975,000) and (iii) the Borrower will issue to the
Seller a $14,500,000 subordinated note (the "Seller Note"); provided, however,
that the Borrower's obligations under and in respect of the Seller Note shall
be assumed by Holdco with the Borrower thereupon being released from all such
obligations;
WHEREAS, in connection with the Acquisition and the ongoing working
capital and general corporate needs of the Borrower and its Subsidiaries, the
Borrower desires to obtain from the Lenders
(a) a Term-A Loan Commitment, a Term-B Loan
Commitment and a Term-C Loan Commitment pursuant to which
Borrowings of Term Loans will be made to the Borrower on the
Closing Date in a maximum, original principal amount of
$60,000,000 (in the case of Term-A Loans), $60,000,000 (in
the case of Term-B Loans) and $40,000,000 (in the case of
Term-C Loans);
(b) a Revolving Loan Commitment (including
availability for Letters of Credit) pursuant to which
Borrowings of Revolving Loans, in a maximum aggregate
principal amount (together with all Letter of Credit
Outstandings) not to exceed $30,000,000, will be made to the
Borrower from time to time on and subsequent to the Closing
Date but prior to the Revolving Loan Commitment Termination
Date; and
(c) a Letter of Credit Commitment pursuant to which
the Issuer will issue, pursuant to the terms and conditions
hereof, Letters of Credit from time to time on and subsequent
to the Closing Date but prior to the Revolving Loan
Commitment Termination Date in a maximum aggregate Stated
Amount at any one time outstanding not to exceed $15,000,000
(provided that the aggregate outstanding principal amount of
Revolving Loans and Letter of Credit Outstandings at any time
shall not exceed the then existing Revolving Loan Commitment
Amount);
with all the proceeds of the Credit Extensions to be used for the
purposes set forth in Section 7.1.9; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrower and
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issue (or participate in) Letters of Credit for the account of the Borrower and
its Subsidiaries;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Account" means any account (as that term is defined in Section 9-106
of the UCC) of the Borrower or any of its wholly-owned U.S. Subsidiaries
arising from the sale or lease of goods or the rendering of services.
"Account Debtor" is defined in clause (b) of the definition
of "Eligible Account".
"Acquisition" is defined in the first recital.
"Acquisition Documents" means each of the Material Documents and all
other agreements, documents, instruments, certificates, filings, consents,
approvals, board of directors resolutions and opinions furnished pursuant to or
in connection with the Acquisition, the Merger, the Preferred Stock Sale and
the Equity Issuance and Contribution and the transactions contemplated hereby
and thereby, each as amended, supplemented, amended and restated or otherwise
modified from time to time as permitted in accordance with the terms hereof or
of any other Loan Document.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
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(a) to vote 15% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent and
the Syndication Agent.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, for any day and with respect to all Base
Rate Loans, the higher of: (a) 0.50% per annum above the latest Federal Funds
Rate; and (b) the rate of interest in effect for such day as publicly announced
from time to time by the Administrative Agent in San Francisco, California, as
its "reference rate." (The "reference rate" is a rate set by the Administrative
Agent based upon various factors including the Administrative Agent's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.) Any change in the reference rate announced by the
Administrative Agent shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Annualized" means (i) with respect to the end of the first Fiscal
Quarter of the Borrower to occur after the Closing Date, the applicable amount
for such Fiscal Quarter multiplied by four, (ii) with respect to the second
Fiscal Quarter of the Borrower to occur after the Closing Date, the applicable
amount for such Fiscal Quarter and the immediately preceding Fiscal Quarter
multiplied by two, and (iii) with respect to the third Fiscal Quarter of the
Borrower to occur after the Closing Date, the applicable amount for such Fiscal
Quarter and the immediately preceding two Fiscal Quarters multiplied by one and
one-third.
"Applicable Commitment Fee" means, at all times during the applicable
periods set forth below, (i) from the Closing Date through (and including) the
end of the second Fiscal Quarter following the Closing Date, 1/2 of 1% per
annum, and (ii) thereafter, by reference to the Leverage Ratio and at the
applicable percentage per annum set forth below under the column entitled
"Applicable Commitment Fee":
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Applicable
Leverage Ratio Commitment Fee
-------------- --------------
greater than or
equal to 2.50:1 0.500%
less than 2.50:1 0.375%
The Leverage Ratio used to compute the Applicable Commitment Fee shall
be the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by the Borrower to the Administrative Agent pursuant to clause (c) of
Section 7.1.1; changes in the Applicable Commitment Fee resulting from a change
in the Leverage Ratio shall become effective upon delivery by the Borrower to
the Administrative Agent of a new Compliance Certificate pursuant to clause (c)
of Section 7.1.1. If the Borrower shall fail to deliver a Compliance
Certificate within the number of days after the end of any Fiscal Quarter as
required pursuant to clause (c) of Section 7.1.1 (without giving effect to any
grace period), the Applicable Commitment Fee from and including the first day
after the date on which such Compliance Certificate was required to be
delivered to but not including the date the Borrower delivers to the
Administrative Agent a Compliance Certificate shall conclusively equal the
highest Applicable Commitment Fee set forth above.
"Applicable Margin" means at all times during the applicable
periods set forth below,
(a) with respect to the unpaid principal amount of
each Term-B Loan maintained as a
(i) Base Rate Loan, 2.25% per annum; and
(ii) LIBO Rate Loan, 3.25% per annum;
(b) with respect to the unpaid principal amount of each
Term-C Loan maintained as a
(i) Base Rate Loan, 2.50% per annum; and
(ii) LIBO Rate Loan, 3.50% per annum;
(c) with respect to the unpaid principal amount of each
Revolving Loan and each Term-A Loan maintained as a Base Rate Loan,
(i) from the Closing Date through (and including) the end of the
second Fiscal Quarter following the Closing Date, 1.75% per annum, and
(ii) thereafter, at the applicable percentage per annum set forth
below under the column entitled "Applicable Margin for Base Rate
Loans"; and
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(d) with respect to the unpaid principal amount of each
Revolving Loan and each Term-A Loan maintained as a LIBO Rate Loan,
(i) from the Closing Date through (and including) the end of the
second Fiscal Quarter following the Closing Date, 2.75% per annum, and
(ii) thereafter, by reference to the Leverage Ratio and at the
applicable percentage per annum set forth below under the column
entitled "Applicable Margin for LIBO Rate Loans":
For Revolving Loans and Term-A Loans:
Applicable Applicable
Margin For Base Margin For LIBO
Leverage Ratio Rate Loans Rate Loans
-------------- --------------- ---------------
greater than or equal
to 3.00:1 1.75% 2.75%
less than 3.00:1 and
greater than or equal
to 2.50:1 1.25% 2.25%
less than 2.50:1 and
greater than or equal
to 2.00:1 0.75% 1.75%
less than 2.00:1 0.50% 1.50%
The Leverage Ratio used to compute the Applicable Margin for Revolving
Loans and Term-A Loans shall be the Leverage Ratio set forth in the Compliance
Certificate most recently delivered by the Borrower to the Administrative Agent
pursuant to clause (c) of Section 7.1.1; changes in the Applicable Margin for
Revolving Loans and Term-A Loans resulting from a change in the Leverage Ratio
shall become effective upon delivery by the Borrower to the Administrative
Agent of a new Compliance Certificate pursuant to clause (c) of Section 7.1.1.
If the Borrower shall fail to deliver a Compliance Certificate within the
number of days after the end of any Fiscal Quarter as required pursuant to
clause (c) of Section 7.1.1 (without giving effect to any grace period), the
Applicable Margin for Revolving Loans and Term-A Loans from and including the
first day after the date on which such Compliance Certificate was required to
be delivered to but not including the date the Borrower delivers to the
Administrative Agent a Compliance Certificate shall conclusively equal the
highest Applicable Margin for Revolving Loans and Term-A Loans set forth
above.
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"Arrangers" means each of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, a Delaware corporation, and BA Securities, Inc., a Delaware
corporation.
"Assignee Lender" is defined in Section 10.11.1.
"Assignor Lender" is defined in Section 10.11.1.
"Assumption Agreement" means the Assumption Agreement executed and
delivered by Holdco, the Borrower and the Seller in respect of Holdco's
assumption of all obligations under and in respect of the Seller Note,
substantially in the form of Exhibit M hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BofA" is defined in the preamble.
"Borrower" is defined in the preamble.
"Borrower Pledge Agreement" means the Pledge Agreement executed and
delivered by an Authorized Officer of the Borrower pursuant to clause (b) of
Section 5.1.8, substantially in the form of Exhibit G-2 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Borrower Security Agreement" means the Security Agreement executed
and delivered by an Authorized Officer of the Borrower pursuant to Section
5.1.9, substantially in the form of Exhibit F-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Borrowing" means Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by the relevant Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Base Amount" means, at any time, the Net Asset Value of all
Eligible Accounts at such time as determined in accordance with the definition
of "Net Asset Value" and as certified by the Borrower to the Lenders in the
most recently delivered Borrowing Base Certificate, including the Borrowing
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Base Certificate delivered on the Closing Date pursuant to clause (c) of
Section 5.1.10.
"Borrowing Base Certificate" means a certificate duly completed and
executed by the president, chief executive officer, treasurer, assistant
treasurer, controller, chief accounting or financial Authorized Officer of the
Borrower, substantially in the form of Exhibit B-3 hereto.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
B-1 hereto.
"Business Day" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York City, Chicago, Illinois, San Francisco, California, and on which dealings
in Dollars are carried on in the London interbank market.
"Canadian Sub Note" is defined in the Transaction Agreement.
"Capital Expenditures" means for any period, the sum, without
duplication, of (i) the aggregate amount of all expenditures of the Borrower
and its Subsidiaries for fixed or capital assets made during such period which,
in accordance with GAAP, would be classified as capital expenditures, and (ii)
with respect to the Borrower and its Subsidiaries, the aggregate amount of all
Capitalized Lease Liabilities incurred during such period, net of an amount
equal to the aggregate amount of sales of scaffolding in the ordinary course of
business by the Borrower and its Subsidiaries during such period.
"Capital Stock" means, with respect to any Person, (i) any and all
shares, interests, participations or other equivalents of or interests in
(however designated) corporate stock, including, without limitation, shares of
preferred or preference stock of such Person, (ii) all partnership interests
(whether general or limited) in such Person, (iii) all membership interests or
limited liability company interests in such Person, and (iv) all other equity
or ownership interests in such Person of any other type.
"Capitalized Lease Liabilities" means, without duplication, all
monetary obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of rent or
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any other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued directly by the United States of America
or any agency thereof or guaranteed by the United States of America or
any agency thereof;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the United
States or of the District of Columbia and rated at least A-l
by S&P or P-l by ▇▇▇▇▇'▇, or
(ii) any Lender (or its holding company);
(c) any time deposit, certificate of deposit or bankers
acceptance, maturing not more than one year after such time,
maintained with or issued by either
(i) a commercial banking institution (including
U.S. branches of foreign banking institutions) that is
a member of the Federal Reserve System and has a
combined capital and surplus and undivided profits of
not less than $500,000,000, or
(ii) any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either ▇▇▇▇▇'▇ or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) any money market or similar fund the assets of which are
comprised exclusively of any of the items specified in clauses (a)
through (d) above and as to which withdrawals are permitted at least
every 90 days; or
(f) any interest bearing account in Canadian dollars
maintained with a Schedule A Bank in Canada.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of property of the Borrower or any of its Subsidiaries.
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"Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the
Borrower or any of its Subsidiaries in connection with such Casualty Event, but
excluding any proceeds or awards required to be paid to a creditor (other than
the Lenders) which holds a first-priority Lien permitted by Section 7.2.3 on
the property which is the subject of such Casualty Event.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response
Compensation Liability Information System List.
"Certificate of Merger" means the Certificate of Merger of
Rust Scaffold Services Inc. into Brand Scaffold Services, Inc.,
as filed with the Secretary of State of Delaware on September 30,
1996.
"Change in Control" means
(i) the failure of Holdco at any time to own, free and clear
of all Liens and encumbrances, all right, title and interest in 100%
of the Capital Stock of the Borrower other than the Preferred Stock;
(ii) the failure of the Purchasers at any time to own, free
and clear of all Liens and encumbrances, all right, title and interest
in at least 51% (on a fully diluted basis) of the Capital Stock of
Holdco; or
(iii) the failure of the Purchasers at any time to have the
right to elect a majority of the Board of Directors of the Borrower.
"Cleandown Period" is defined in clause (l) of Section
3.1.1.
"Closing Date" means the date of the Initial Credit Extension, not to
be later than September 30, 1996.
"Closing Date Certificate" means a certificate of an Authorized
Officer of the Borrower substantially in the form of Exhibit D hereto,
delivered pursuant to Section 5.1.4.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, a Lender's
Letter of Credit Commitment, Revolving Loan Commitment, Term-A
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Loan Commitment, Term-B Loan Commitment or Term-C Loan Commitment.
"Commitment Amount" means, as the context may require, the Letter of
Credit Commitment Amount, the Revolving Loan Commitment Amount, the Term-A Loan
Commitment Amount, the Term-B Loan Commitment Amount or the Term-C Loan
Commitment Amount.
"Commitment Letter" means the commitment letter, dated September 19,
1996, among DLJ Merchant Banking Funding, Inc., the Arrangers and the Agents
including all annexes and exhibits
thereto.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date or any Term Loan Commitment
Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in
clauses (b) through (d) of Section 8.1.9 with respect to any Obligor
(other than immaterial Subsidiaries); or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the giving
of notice by the Administrative Agent, acting at the
direction of the Required Lenders, to the Borrower that the
Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by the chief financial Authorized Officer of the Borrower,
substantially in the form of Exhibit E hereto.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be the
outstanding
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principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of
any Stated Expiry Date of any previously issued Letter of Credit, by
the Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Assets" means, on any date, without duplication, all assets
(other than cash and other than receivables arising from the $2,900,000 per
annum payment from WMX Technologies, Inc. and its Subsidiaries to the Borrower
pursuant to the Transitional Services Agreement) which, in accordance with
GAAP, would be included as current assets on a consolidated balance sheet of
the Borrower and its Subsidiaries at such date as current assets (excluding,
however, amounts due and to become due from Affiliates of the Borrower which
have arisen from transactions which are other than arm's-length and in the
ordinary course of its business).
"Current Liabilities" means, on any date, without duplication, all
amounts which, in accordance with GAAP, would be included as current
liabilities on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date, excluding current maturities of Indebtedness
(including Cleandown Period obligations).
"Debt" means, without duplication, the outstanding principal amount of
all Indebtedness of the Borrower and its Subsidiaries of the types referred to
in clauses (a), (b), (c) and (to the extent that the applicable indebtedness is
of the type described in any such clauses (a), (b), or (c)) (e) of the
definition of
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"Indebtedness" or any Contingent Liability in respect of any of the foregoing
types of Indebtedness.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would, unless cured or
waived, constitute an Event of Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"DLJ" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United
States.
"EBITDA" means, for any applicable period, the sum (without
duplication) for the Borrower and its Subsidiaries on a
consolidated basis of
(a) Net Income,
plus
(b) the amount deducted, in determining Net Income,
representing depreciation and amortization,
plus
(c) the amount deducted, in determining Net Income,
representing income taxes (whether paid or deferred),
plus
(d) the amount deducted, in determining Net Income,
representing Interest Expense,
plus
(e) an amount equal to the amount of all non-cash charges
deducted in determining Net Income,
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plus
(f) to the extent not included in determining Net Income, the
$2.9 million per annum payment to the Borrower from WMX Technologies,
Inc. and its Subsidiaries pursuant to the Transitional Services
Agreement, and any other payments from WMX Technologies, Inc. and its
Subsidiaries pursuant to the Transitional Services Agreement,
plus
(g) to the extent not included in determining Net Income or
in clause (e) or (f) above, for the purpose of calculating the Fixed
Charge Coverage Ratio, the Interest Coverage Ratio and the Leverage
Ratio in respect of the first three Fiscal Quarters after the Closing
Date, the Annualized amount of (i) the $2,900,000 per annum payment to
the Borrower from WMX Technologies, Inc. and its Subsidiaries pursuant
to the Transitional Services Agreement and (ii) the non-cash portion
of general liability, auto liability, workers' compensation or
post-retirement health, insurance and related benefits expense,
minus
(h) an amount equal to the amount of all non-cash credits
included in determining Net Income,
minus
(i) to the extent not deducted in determining Net Income,
cash expenditures actually paid in connection with general liability,
auto liability, workers' compensation or post-retirement health,
insurance and related benefits.
"Eligible Account" means, with respect to the Borrower and any of its
U.S. wholly-owned Subsidiaries, at the time of any determination thereof, any
Account as to which each of the following requirements has been fulfilled to
the reasonable satisfaction of the Administrative Agent:
(a) the Borrower or such Subsidiary owns such Account free
and clear of all Liens other than any Lien in favor of the
Administrative Agent and the Lenders granted pursuant to this
Agreement or another Loan Document or permitted by Sections 7.2.3(d)
and (g) (and, other than in the case of Accounts referred to in clause
(d) below, the Administrative Agent shall have a first-priority (other
than inchoate statutory Liens otherwise permitted by Section 7.2.3)
perfected Lien on such Account);
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(b) such Account is a legal, valid, binding and enforceable
obligation of the Person obligated under such Account (the "Account
Debtor");
(c) such Account is not subject to any bona fide dispute,
setoff, counterclaim or other claim or defense on the part of the
Account Debtor or any other Person denying liability under such
Account; provided, however, that any such Account shall constitute an
Eligible Account to the extent it is not subject to any such dispute,
setoff, counterclaim or other claim or defense;
(d) except for Accounts in an aggregate amount not to exceed
$1,000,000 at any one time, for which the Account Debtor is the
government of the United States or an instrumentality thereof, the
Borrower or such Subsidiary has the full and unqualified right to
assign and ▇▇▇▇▇ ▇ ▇▇▇▇ in such Account to the Administrative Agent,
for its benefit and that of the Lenders, as security for the
Obligations;
(e) such Account is evidenced by an invoice rendered to the
Account Debtor (which shall include computer records) or is reflected
by computer records maintained by the Borrower or such Subsidiary
evidencing such Account and is not evidenced by any instrument or
chattel paper (as the terms "instrument" and "chattel paper" are
defined in Section 9-105 of the UCC), unless such instrument or
chattel paper has been delivered to the Administrative Agent;
(f) such Account arose from the sale of goods or services by
the Borrower or such Subsidiary in the ordinary course of the
Borrower's or such Subsidiary's business, and such goods or services
have been shipped or delivered (in the case of goods) or rendered in
full (in the case of services) to the Account Debtor for such Account;
(g) with respect to such Account, no Account Debtor is
(i) an Affiliate of the Borrower or any of its
Subsidiaries (other than Accounts in an aggregate amount not
to exceed $2,500,000 as to which WMX Technologies, Inc. or
any of its Subsidiaries is the Account Debtor), or
(ii) the subject of any reorganization, bankruptcy,
receivership, custodianship, insolvency or other condition
analogous with respect to such Account Debtor to those
described in clauses (a) through (d) of Section 8.1.9;
-15-
(h) such Account is not outstanding more than 90 (or, in the
case of Accounts the original terms of which do not require payment
prior to 60 days after the billing date thereof, 120; provided such
Accounts do not exceed $5,000,000 in the aggregate) days past the
original billing date (which date, if such Account arose from the sale
of goods, shall not be later than seven days from the date of the
shipment of the Inventory giving rise to such Account) for such
Account;
(i) such Account is not an Account owing by an Account Debtor
having, at the time of any determination of Eligible Accounts, in
excess of 10% of the aggregate outstanding amount of all of such
Account Debtor's Accounts (other than any Accounts which are the
subject of bona fide disputes between such Account Debtor and the
Borrower or such Subsidiary, as the case may be) outstanding more than
90 (or, in the case of Accounts the original terms of which do not
require payment prior to 60 days after the billing date thereof, 120;
provided such Accounts do not exceed $5,000,000 in the aggregate) days
past the original invoice date with respect thereto;
(j) with respect to the Account Debtor under such Account,
neither the Borrower nor any such Subsidiary is indebted to such
Account Debtor, unless the Borrower or such Subsidiary and such
Account Debtor have entered into an agreement whereby the Account
Debtor is prohibited from exercising any right of setoff with respect
to the Accounts of the Borrower or such Subsidiary; provided, that in
any event, if such an agreement prohibiting setoff rights is not
delivered by the Account Debtor, then only up to the amount that the
Borrower or such Subsidiary is indebted to such Account Debtor shall
be excluded as an Eligible Account pursuant to this clause; and
(k) such Account arises from a sale to an Account Debtor
located within the United States, Puerto Rico or Canada, unless the
Account Debtor's obligations (or that portion of such obligations
which is acceptable to the Administrative Agent) with respect to a
sale to an Account Debtor not located within the United States, Puerto
Rico or Canada are secured by a letter of credit, guaranty or eligible
bankers' acceptance having terms, and from such issuers and
confirmation banks, as are acceptable to the Administrative Agent.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations
-16-
(including consent decrees and administrative orders) relating to public health
and safety and protection of the environment.
"Equity Issuance and Contribution" is defined in the third
recital.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any applicable period, the
excess (if any), of
(a) EBITDA for such applicable period;
over
(b) the sum, without duplication (for such applicable period)
of
(i) the cash portion of Interest Expense (net of
interest income) for such applicable period;
plus
(ii) scheduled payments and optional and mandatory
prepayments, to the extent actually made, of the principal
amount of the Term Loans or any other term Debt (including
Capitalized Lease Liabilities) and mandatory prepayments of
the principal amount of the Revolving Loans pursuant to
clauses (b) or (g) of Section 3.1.1 in connection with a
reduction of the Revolving Loan Commitment Amount, in each
case for such applicable period;
plus
(iii) all federal, state and foreign income taxes
actually paid in cash by the Borrower and its Subsidiaries
for such applicable period;
plus
(iv) Capital Expenditures actually made during such
applicable period pursuant to clause (a) of Section 7.2.7
(excluding Capital Expenditures constituting Capitalized
Leases and by way of the incurrence of Indebtedness permitted
pursuant to Section 7.2.2(b)(ii) to a vendor of any assets
-17-
permitted to be acquired pursuant to Section 7.2.7 to finance
the acquisition of such assets);
plus
(v) the amount of the net increase (or minus in the
case of a net decrease), of Current Assets over Current
Liabilities of the Borrower and its Subsidiaries for such
applicable period;
plus
(vi) Investments permitted and actually made
pursuant to clauses (d) and (i) of Section 7.2.5 during such
applicable period;
plus
(vii) Restricted Payments permitted and actually
made pursuant to clauses (d)(i) or (d)(ii) of Section 7.2.6
during such applicable period.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
"Fee Letter" means the confidential fee letter, dated as of September
19, 1996, among DLJ Merchant Banking Funding, Inc., the
Arrangers and the Agents.
"Fiscal Quarter" means any calendar quarter.
"Fiscal Year" means any calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and the
three immediately prior Fiscal Quarters of
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(a) EBITDA for all such Fiscal Quarters (less any Restricted
Payments made pursuant to clause (d)(i) of Section 7.2.6 during such
Fiscal Quarters).
to
(b) the sum (without duplication) of
(i) Capital Expenditures actually made during all
such Fiscal Quarters pursuant to clause (a) of Section 7.2.7
(excluding Capital Expenditures constituting Capitalized
Leases and by way of the incurrence of Indebtedness permitted
pursuant to Section 7.2.2(b)(ii) to a vendor of any assets
permitted to be acquired pursuant to Section 7.2.7 to finance
the acquisition of such assets);
plus
(ii) the cash portion of Interest Expenses (net of
interest income) for all such Fiscal Quarters, provided that
for the first three Fiscal Quarters after the Closing Date
Interest Expense shall be determined on an Annualized basis;
plus
(iii) all scheduled payments of principal, to the
extent actually made, of the Term Loans and other term Debt
(including the principal portion of any Capital Lease
Liabilities) during all such Fiscal Quarters, provided that
for the first three Fiscal Quarters after the Closing Date
such payments shall be determined on an Annualized basis;
plus
(iv) Restricted Payments made during all such Fiscal
Quarters in accordance with clause (e) of Section 7.2.6.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Guaranty and Non-Competition Agreement" is defined in the
Transaction Agreement.
"Hazardous Material" means
-19-
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Holdco" is defined in the second recital.
"Holdco Pledge Agreement" means the Holdco Pledge Agreement executed
and delivered by an Authorized Officer of Holdco pursuant to clause (a) of
Section 5.1.8, substantially in the form of Exhibit G-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of any Obligor, any qualification or exception to such opinion or
certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to
-20-
such item the effect of which would be to cause such Obligor to be in
default of any of its obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or for
the deferred purchase price of property or services (exclusive of
deferred purchase price arrangements in the nature of open accounts
payable owed to suppliers on normal terms in connection with the
purchase of goods and services in the ordinary course of business) and
all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance
with GAAP, all indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse; provided,
however, that, to the extent such Indebtedness is limited in recourse
to the assets securing such Indebtedness, the amount of such
Indebtedness shall be limited to the fair market value of such assets;
and
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint
-21-
venture in which such Person is a general partner or a joint venturer (to the
extent such Person is liable for such Indebtedness).
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Initial Public Offering" means for any Person, any sale of the
Capital Stock of such Person to the public pursuant to an initial, primary
offering registered under the Securities Act of 1933.
"Interest Coverage Ratio" means, at the end of any Fiscal Quarter, the
ratio computed for the period consisting of such Fiscal Quarter and each of the
three immediately prior Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) the cash portion of Interest Expense (for all such Fiscal
Quarters, provided that for the first three Fiscal Quarters after the
Closing Date Interest Expense shall be determined on an Annualized
basis).
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense of the Borrower and its Subsidiaries for such
applicable period, as determined in accordance with GAAP, including the portion
of any payments made in respect of Capitalized Lease Liabilities allocable to
interest expense, but excluding (to the extent included in interest expense)
up-front fees and expenses incurred in connection with the Transaction.
"Interest Period" means, as to any LIBO Rate Loan, the period
commencing on the Borrowing date of such Loan or on the date on which the Loan
is converted into or continued as a LIBO Rate Loan, and ending on the date one,
two, three or six months thereafter as selected by the Borrower in its
Borrowing Request or its Conversion/Continuation Notice; provided however that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the preceding Business Day;
-22-
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such
Interest Period;
(iii) no Interest Period for any Loan shall extend
beyond the Stated Maturity Date for such Loan;
(iv) no Interest Period applicable to a Term Loan or
portion thereof shall extend beyond any date upon which is
due any scheduled principal payment in respect of the Term
Loans unless the aggregate principal amount of Term Loans
represented by Base Rate Loans, or by LIBO Rate Loans having
Interest Periods that will expire on or before such date,
equals or exceeds the amount of such principal payment; and
(v) there shall be no more than ten Interest Periods
in effect at any one time.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business); and
(b) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made
by the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of Exhibit B-2 hereto.
"Issuer" means, collectively, Bank of America Illinois (an Affiliate
of BofA) in its individual capacity hereunder as issuer of the Letters of
Credit and any Lender as may be designated by the Borrower (and agreed to by
the Agents and such Lender) in its individual capacity as the issuer of Letters
of Credit.
-23-
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligation of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $15,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an
amount equal to the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
"Leverage Ratio" means, at the end of any Fiscal Quarter,
the ratio of
(a) total Debt of the Borrower and its Subsidiaries
outstanding at such time;
to
(b) EBITDA for the period of four consecutive Fiscal Quarters
most recently ended on or prior to such date.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate of interest per annum determined by the Administrative Agent to
be the arithmetic mean (rounded upward to the next 1/16th of 1%) of the rates
of interest per annum at which dollar deposits in the approximate amount of the
amount of the Loan to be made or continued as, or converted into, a LIBO Rate
Loan by the Administrative Agent and having a maturity comparable to such
Interest Period would be offered to the
-24-
Administrative Agent in the London interbank market at its request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, the rate of interest per annum (rounded upwards to the next
1/16 of 1%) determined by the Administrative Agent as follows:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such on Schedule II hereto or designated in the Lender
Assignment Agreement or such other office of a Lender as designated from time
to time by notice from such Lender to the Borrower and the Administrative
Agent, whether or not outside the United States, which shall be making or
maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the percentage (expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
-25-
"Loan" means, as the context may require, a Revolving Loan, a Term-A
Loan, a Term-B Loan or a Term-C Loan, of any type.
"Loan Document" means this Agreement, the Notes, the Letters of
Credit, each Borrowing Base Certificate, the Fee Letter, each Pledge Agreement,
the Subsidiary Guaranty, each Mortgage (upon execution and delivery thereof),
each Security Agreement, each Patent Security Agreement, and each other
agreement, document or instrument delivered in connection with this Agreement
or any other Loan Document, whether or not specifically mentioned herein or
therein.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of the Borrower
and its Subsidiaries, taken as a whole, (b) a material impairment of the
ability of the Borrower or any other Obligor to perform its respective material
obligations under the Loan Documents to which it is or will be a party, or (c)
an impairment of the validity or enforceability of, or a material impairment of
the rights, remedies or benefits available to the Issuer, the Agents, the
Arrangers or the Lenders under, this Agreement or any other Loan Document.
"Material Documents" means the Transaction Agreement, the Transitional
Services Agreement, the Seller Note, the certificate of incorporation of the
Borrower (as amended), the Shareholders Agreement, the Guaranty and
Non-Competition Agreement and the Canadian Sub Note, each as amended,
supplemented, amended and restated or otherwise modified from time to time as
permitted in accordance with the terms hereof or of any other Loan Document.
"Merger" is defined in the second recital.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc.
"Mortgage" means, collectively, each Mortgage or Deed of Trust
executed and delivered pursuant to the terms of this Agreement, including
Sections 7.1.8(b) or 7.1.12, in form and substance reasonably satisfactory to
the Agents.
"Net Asset Value" means, at any time of any determination, 85% of an
amount equal to (x) the book value of all Eligible Accounts as reflected on the
books of the Borrower and its Subsidiaries in accordance with GAAP, net of (y)
all credits, discounts and allowances (and net of all unissued credits in the
form of competitive allowances or otherwise) in respect of such Eligible
Accounts.
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance by the Borrower or any of its Subsidiaries of
-26-
any Debt (other than Debt permitted by Section 7.2.2 as in effect on the date
hereof), the excess of:
(a) the gross cash proceeds received by the Borrower or any
of its Subsidiaries from such incurrence, sale or issuance,
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such incurrence, sale or issuance.
"Net Disposition Proceeds" means, with respect to any sale, transfer
or other disposition of any assets of the Borrower or any of its Subsidiaries
(other than sales permitted pursuant to Section 7.2.9(a)), the excess of
(a) the gross cash proceeds received by the Borrower or any
of its Subsidiaries from any such sale, transfer or other disposition
and any cash payments received in respect of promissory notes or other
non-cash consideration delivered to the Borrower or such Subsidiary in
respect thereof,
less
(b) the sum of
(i) all reasonable and customary fees and expenses
with respect to legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with
such sale, transfer or other disposition,
(ii) all taxes and other governmental costs and
expenses actually paid or estimated by the Borrower (in good
faith) to be payable in cash in connection with such sale,
transfer or other disposition, and
(iii) payments made by the Borrower or any of its
Subsidiaries to retire Indebtedness (other than the Loans) of
the Borrower or any of its Subsidiaries where payment of such
Indebtedness is required in connection with such sale,
transfer or other disposition;
-27-
provided, however, that if, after the payment of all taxes with respect to such
sale, transfer or other disposition, the amount of estimated taxes, if any,
pursuant to clause (b)(ii) above exceeded the tax amount actually paid in cash
in respect of such sale, transfer or other disposition, the aggregate amount of
such excess shall be immediately payable, pursuant to clause (c) of Section
3.1.1, as Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by
the Borrower or Holdco to any Person of any of its stock or any warrants or
options with respect to its stock or the exercise of any such warrants or
options after the Closing Date (other than pursuant to (i) capital
contributions (from other than an Initial Public Offering) which are
concurrently contributed to the Borrower, (ii) any subscription agreement,
incentive plan or similar arrangement with any officer, employee or director of
Holdco, the Borrower or any Subsidiary of the Borrower, (iii) any loan by the
Borrower or Holdco to such officer, employee or director solely for the purpose
of purchasing such shares pursuant to Section 7.2.5(h), or (iv) proceeds from
the sale of any Capital Stock to any officer, director or employee of the
Borrower, its Subsidiaries or Holdco in an aggregate amount not to exceed
$2,000,000 after the Closing Date) the excess of:
(a) the gross cash proceeds received by Holdco or the
Borrower from such sale, exercise or issuance,
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such sale or issuance.
"Net Income" means, for any period, the net income of the Borrower and
its Subsidiaries for such period on a consolidated basis, excluding
extraordinary gains.
"Net Worth" means the consolidated net worth of the Borrower and its
Subsidiaries including, to the extent not otherwise included in net worth under
GAAP, the Preferred Stock and unpaid dividends thereon.
"Non-U.S. Lender" means any Lender (including each Assignee Lender)
that is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any
-28-
state thereof, or (iii) an estate or trust that is subject to U.S. Federal
income taxation regardless of the source of its income.
"Non-U.S. Subsidiary" means a Subsidiary of the Borrower
that is not a U.S. Subsidiary.
"Note" means, as the context may require, a Revolving Note, a
Registered Note, a Term-A Note, a Term-B Note or a Term-C Note.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement, the Notes, each Letter of Credit and each other Loan Document, and
Hedging Obligations (in respect of the Loans) owed to a Lender or an Affiliate
thereof (unless the Lender or such Affiliate otherwise agrees).
"Obligor" means the Borrower or any other Person (other than any
Agent, any Issuer, any Arranger or any Lender) obligated under any Loan
Document.
"Organic Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements to which such Obligor is a party applicable to any of its
authorized shares of Capital Stock.
"Participant" is defined in Section 10.11.2.
"Patent Security Agreement" means any Patent Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit A to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified.
"PBGC" means the Pension Benefit Guaranty Corporation and
any successor entity.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the
Borrower, a member of a Controlled Group, has or within the prior six years has
had any liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
-29-
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term-A Loans, Term-B Loans, Term-C Loans or Revolving Loans, as the
case may be, as set forth opposite its name on Schedule II hereto under the
applicable column heading or set forth in Lender Assignment Agreement(s) under
the applicable column heading, as such percentage may be adjusted from time to
time pursuant to Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lender(s) and delivered pursuant to Section 10.11. A Lender shall not
have any Commitment to make Revolving Loans, Term-A Loans, Term-B Loans or
Term-C Loans (as the case may be) if its percentage under the respective column
heading is zero.
"Perfection Certificate" means the Perfection Certificate executed and
delivered by an Authorized Officer of the Borrower pursuant to Section 5.1.21,
substantially in the form of Exhibit I hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the
Borrower Pledge Agreement, the Holdco Pledge Agreement or the
Subsidiary Pledge Agreement.
"Preferred Stock" means the Borrower's Senior Exchangeable
Preferred Stock.
"Preferred Stock Sale" is defined in the third recital.
"Pro Forma Balance Sheet" is defined in clause (b) of
Section 5.1.10.
"Purchasers" is defined in the first recital.
"Quarterly Payment Date" means the last day of each of March, June,
September and December, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing with December 31, 1996.
"Redemption" is defined in Section 7.2.6.
"Register" is defined in clause (b) of Section 2.8.
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"Registered Note" means a promissory note of the Borrower payable to
any Registered Noteholder, in the form of Exhibit A-5 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Term Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"Registered Noteholder" means any Lender that has been
issued a Registered Note.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Release" means a "release", as such term is defined in
CERCLA.
"Replacement Notice" is defined in Section 4.11.
"Replacement Lender" is defined in Section 4.11.
"Required Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit
Extension hereunder, Lenders having at least 51% of the sum of the
Revolving Loan Commitments, Term-A Loan Commitments, Term-B Loan
Commitments and Term-C Loan Commitments; and
(b) on and after the date of the initial Credit Extension,
Lenders holding at least 51% of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as in effect from time to time.
"Restricted Payments" is defined in Section 7.2.6.
"Revolving Loan" is defined in Section 2.1.2.
"Revolving Loan Commitment" is defined in Section 2.1.2.
"Revolving Loan Commitment Amount" means, on any date, $30,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
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"Revolving Loan Commitment Termination Date" means the
earliest of
(a) October 31, 1996 if the Term Loans have not been
made on or prior to such date;
(b) the sixth anniversary of the Closing Date;
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.2; and
(d) the date on which any Commitment Termination Event
occurs.
"Revolving Note" means a promissory note of the Borrower payable to
any Lender, substantially in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Lender resulting
from outstanding Revolving Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Rust" is defined in the first recital.
"S&P" means Standard & Poors Ratings Group, a division of McGraw Hill,
Inc.
"Security Agreement" means, as the context may require, the Borrower
Security Agreement or the Subsidiary Security Agreement.
"Seller" is defined in the first recital.
"Seller Note" is defined in the fourth recital.
"Shareholders Agreement" is defined in the Transaction
Agreement.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (d) such Person is not engaged in business or a transaction, and
such person is not
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about to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof as
reduced in accordance with the terms thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) in the case of any Revolving Loan, the sixth
anniversary of the Closing Date;
(b) in the case of any Term-A Loan, the sixth anniversary of
the Closing Date;
(c) in the case of any Term-B Loan, the seventh anniversary
of the Closing Date; and
(d) in the case of any Term-C Loan, the eighth anniversary of
the Closing Date.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interests) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"Subsidiary Guarantor" means, on the Closing Date, each U.S.
Subsidiary of the Borrower, and thereafter, each U.S. Subsidiary of the
Borrower that is required, pursuant to clause (a) of Section 7.1.7, to execute
and deliver a supplement to the Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty executed and delivered by
each Subsidiary Guarantor pursuant to the terms of this Agreement,
substantially in the form of Exhibit H hereto, as
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amended, supplemented, amended and restated or otherwise modified from time to
time.
"Subsidiary Pledge Agreement" means the Pledge Agreement executed and
delivered by certain Subsidiaries of the Borrower pursuant to the terms of this
Agreement, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Subsidiary Security Agreement" means the Security Agreement executed
and delivered by certain U.S. Subsidiaries of the Borrower pursuant to the
terms of this Agreement, substantially in the form of Exhibit F-2 hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Taxes" is defined in Section 4.6.
"Term-A Loan" is defined in clause (a) of Section 2.1.1.
"Term-A Loan Commitment" is defined in clause (a) of Section
2.1.1.
"Term-A Loan Commitment Amount" means $60,000,000.
"Term-A Loan Commitment Termination Date" means the earliest
of
(a) October 31, 1996, if the Term-A Loans have not been made
on or prior to such date;
(b) the Closing Date (immediately after the making of the
Term-A Loans on such date); and
(c) the date on which any Commitment Termination Event
occurs.
"Term-A Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-A Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Term-B Loan" is defined in clause (b) of Section 2.1.1.
"Term-B Loan Commitment" is defined in clause (b) of Section
2.1.1.
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"Term-B Loan Commitment Amount" means $60,000,000.
"Term-B Loan Commitment Termination Date" means the earliest
of
(a) October 31, 1996, if the Term-B Loans have not been made
on or prior to such date;
(b) the Closing Date (immediately after the making of the
Term-B Loans on such date); and
(c) the date on which any Commitment Termination Event
occurs.
"Term-B Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-3 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-B Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Term-C Loan" is defined in clause (c) of Section 2.1.1.
"Term-C Loan Commitment" is defined in clause (c) of Section
2.1.1.
"Term-C Loan Commitment Amount" means $40,000,000.
"Term-C Loan Commitment Termination Date" means the earliest
of
(a) October 31, 1996, if the Term-C Loans have not been made
on or prior to such date;
(b) the Closing Date (immediately after the making of the
Term-C Loans on such date); and
(c) the date on which any Commitment Termination Event
occurs.
"Term-C Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-4 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-C Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
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"Term Loans" means collectively, the Term-A Loans, the
Term-B Loans and the Term-C Loans.
"Term Loan Commitment Termination Date" means, as the
context may require, the Term-A Loan Commitment Termination Date,
the Term-B Loan Commitment Termination Date or the Term-C Loan
Commitment Termination Date.
"Total Exposure Amount" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the then effective Revolving
Loan Commitment Amount.
"Tranche" means, as the context may require, the Loans
constituting Term-A Loans, Term-B Loans, Term-C Loans or
Revolving Loans.
"Transaction" means the Acquisition, the Merger, the Equity Issuance
and Contribution, the Preferred Stock Sale, the execution of this Agreement and
the making of the initial Credit Extension, and any and all transactions
relating to any of the
foregoing.
"Transaction Agreement" means the Amended and Restated Transaction
Agreement, dated as of September 18, 1996, among DLJ Merchant Banking Partners,
L.P., DLJ International Partners, C.V., DLJ Offshore Partners, C.V., DLJ
Merchant Banking Funding, Inc., Carlisle Enterprises, L.P., Holdco, the
Borrower, certain Subsidiaries of the Borrower, the Seller, Rust International
Inc., Rust and certain Subsidiaries of Rust, as amended, supplemented, amended
and restated or otherwise modified from time to time as permitted hereby or by
any other Loan Document.
"Transitional Services Agreement" means the Transitional Services
Agreement, dated as of September 30, 1996, among the Borrower, WMX
Technologies, Inc., Rust International Inc. and the Seller, as amended,
supplemented, amended and restated or otherwise modified from time to time as
permitted hereby or by
any other Loan Document.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"United States" or "U.S." means the United States of America, its
fifty states and the District of Columbia.
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"U.S. Subsidiary" means any Subsidiary of the Borrower that
is incorporated or organized in or under the laws of the United
States or any state thereof.
"Waiver" means an agreement in favor of the Agents for the benefit of
the Lenders in form and substance reasonably satisfactory to the Agents.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA, and to which the Borrower has any liability.
"wholly-owned Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or
more wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each other Loan Document, notice and other communication delivered from time to
time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared
in accordance with, those generally accepted accounting principles ("GAAP"), as
in effect on December 31, 1995, applied in the preparation of the audited
financial statements referred to in Section 7.1.13.
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ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the
conditions of this Agreement (including Article V),
(a) each Lender severally agrees to make Loans pursuant to the
Commitments in each case as described in this Section 2.1.
(b) each Issuer severally agrees that it will issue Letters of Credit
pursuant to Section 2.1.3, and each other Lender that has a Revolving Loan
Commitment severally agrees that it will purchase participation interests in
such Letters of Credit pursuant to Section 2.6.1.
SECTION 2.1.1. Term Loan Commitments. Subject to compliance by the
Borrower with the terms of Sections 2.1.4, 5.1 and 5.2, on (but solely on) the
Closing Date (which shall be a Business Day), each Lender that has a Percentage
in excess of zero of the Term-A Loan Commitment, the Term-B Loan Commitment or
the Term-C Loan Commitment, as applicable,
(a) will make loans (relative to such Lender, its "Term-A
Loans") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing or Borrowings of Term-A Loans
requested by the Borrower to be made on the Closing Date (with the
commitment of each such Lender described in this clause (a) herein
referred to as its "Term-A Loan Commitment");
(b) will make loans (relative to such Lender, its "Term-B
Loans") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing or Borrowings of Term-B Loans
requested by the Borrower to be made on the Closing Date (with the
commitment of each such Lender described in this clause (b) herein
referred to as its "Term-B Loan Commitment"); and
(c) will make loans (relative to such Lender, its "Term-C
Loans") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing or Borrowings of Term-C Loans
requested by the Borrower to be made on the Closing Date (with the
commitment of each such Lender described in this clause (c) herein
referred to as its "Term-C Loan Commitment").
No amounts paid or prepaid with respect to Term-A Loans, Term-B Loans or Term-C
Loans may be reborrowed.
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SECTION 2.1.2. Revolving Loan Commitment. Subject to compliance by the
Borrower with the terms of Section 2.1.4, Section 5.1 and Section 5.2, from
time to time on any Business Day occurring concurrently with (or after) the
making of the Term Loans but prior to the Revolving Loan Commitment Termination
Date, each Lender that has a Percentage of the Revolving Loan Commitment in
excess of zero will make loans (relative to such Lender, its "Revolving Loans")
to the Borrower equal to such Lender's Percentage of the aggregate amount of
the Borrowing of the Revolving Loans requested by the Borrower to be made on
such day. The Commitment of each Lender described in this Section 2.1.2 is
herein referred to as its "Revolving Loan Commitment". On the terms and subject
to the conditions hereof, the Borrower may from time to time borrow, prepay and
reborrow Revolving Loans.
SECTION 2.1.3. Letter of Credit Commitment. Subject to compliance by
the Borrower with the terms of Section 2.1.5, Section 5.1 and Section 5.2, from
time to time on any Business Day occurring concurrently with (or after) the
Closing Date but prior to the Revolving Loan Commitment Termination Date, the
Issuer will
(a) issue one or more standby or performance letters of
credit (each referred to as a "Letter of Credit") for the account of
the Borrower in the Stated Amount requested by the Borrower on such
day; or
(b) extend the Stated Expiry Date of an existing standby or
performance Letter of Credit previously issued hereunder to a date not
later than the earlier of (x) the Revolving Loan Commitment
Termination Date and (y) one year
from the date of such extension.
SECTION 2.1.4. Lenders Not Permitted or Required To Make the Loans. No
Lender shall be permitted or required to, and the Borrower shall not request
that any Lender, make
(a) any Term-A Loan, Term-B Loan or Term-C Loan (as the case
may be) if, after giving effect thereto, the aggregate original
principal amount of all the Term-A Loans, Term-B Loans or Term-C Loans
(as the case may be) of such Lender would exceed such Lender's
Percentage of the Term-A Loan Commitment Amount (in the case of Term-A
Loans), the Term-B Loan Commitment Amount (in the case of Term-B
Loans) or the Term-C Loan Commitment Amount (in the case of Term-C
Loans); or
(b) any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all
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the Revolving Loans of such Lender, together with such Lender's
Percentage of the aggregate amount of all Letter of Credit
Outstandings, would exceed such Lender's Percentage of the lesser of
(x) the Revolving Loan Commitment Amount and (y) the then existing
Borrowing Base Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans then outstanding would exceed
the lesser of (x) the Revolving Loan Commitment Amount and (y) the then
existing Borrowing Base Amount.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts are subject to reductions from time to time pursuant to this Section
2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the time of the initial Credit Extension
hereunder, voluntarily reduce the Letter of Credit Commitment Amount or the
Revolving Loan Commitment Amount; provided, however, that all such reductions
shall require at least three Business Days' prior notice to the Administrative
Agent and be permanent, and any partial reduction of any Commitment Amount
shall be in a minimum amount of $1,000,000 and in an integral multiple of
$500,000. Any such reduction of the Revolving Loan Commitment Amount which
reduces the Revolving Loan Commitment Amount below the Letter of Credit
Commitment Amount shall result in an automatic and corresponding reduction of
the Letter of Credit Commitment Amount (as directed by the Borrower in a notice
to the Administrative Agent delivered together with the notice of such
voluntary reduction in the Revolving Loan Commitment Amount) to an aggregate
amount not in excess of the Revolving Loan Commitment Amount, as so reduced,
without any further action on the part of the Issuer.
SECTION 2.2.2. Mandatory. Following the prepayment in full of the Term
Loans, the Revolving Loan Commitment Amount shall, without any further action,
automatically and permanently be reduced on the date the Term Loans would
otherwise have been required to be prepaid on account of any Net Disposition
Proceeds, Net Debt Proceeds, Excess Cash Flow, Net Equity Proceeds or Casualty
Proceeds, in an amount equal to the amount by which the Term Loans would
otherwise have been required to be prepaid if Term Loans had been outstanding.
Any such reduction of the Revolving Loan Commitment Amount which reduces the
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Revolving Loan Commitment Amount below the Letter of Credit Commitment Amount
shall result in an automatic and corresponding reduction of the Letter of
Credit Commitment Amount (as directed by the Borrower in a notice to the
Administrative Agent) to an aggregate amount not in excess of the Revolving
Loan Commitment Amount, as so reduced, without any further action on the part
of the Issuer.
SECTION 2.3. Borrowing Procedures and Funding Maintenance.
Loans shall be made by the Lenders in accordance with this
Section.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a
Borrowing Request to the Administrative Agent on or before 12:00 noon, New York
time, on a Business Day, the Borrower may from time to time irrevocably
request, on not less than one Business Day's notice (in the case of Base Rate
Loans) or three Business Days' notice (in the case of LIBO Rate Loans) nor more
than five Business Days' notice (in the case of any Loans), that a Borrowing be
made, in the case of LIBO Rate Loans, in a minimum amount of $1,000,000 and an
integral multiple of $500,000, and in the case of Base Rate Loans, in a minimum
amount of $500,000 and an integral multiple thereof, or, in either case, in the
unused amount of the applicable Commitment. On the terms and subject to the
conditions of this Agreement, each Borrowing shall be comprised of the type of
Loans, and shall be made on the Business Day, specified in such Borrowing
Request. On or before 11:00 a.m., New York time, on such Business Day each
Lender shall deposit with the Administrative Agent same day funds in an amount
equal to such Lender's Percentage of the requested Borrowing. Such deposit will
be made to an account which the Administrative Agent shall specify from time to
time by notice to the Lenders. To the extent funds are received from the
Lenders, the Administrative Agent shall make such funds available to the
Borrower by wire transfer to the accounts the Borrower shall have specified in
its Borrowing Request. No Lender's obligation to make any Loan shall be
affected by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice (in the case of a
conversion of LIBO Rate Loans to Base Rate Loans) or three Business Days'
notice (in the case of a continuation of LIBO Rate Loans or a conversion of
Base Rate Loans into LIBO Rate Loans) nor more than five Business Days' notice
(in the case of any Loans) that all, or any portion in an aggregate minimum
amount of $1,000,000 and an integral multiple of $500,000, in the case of the
continuation
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of, or conversion into, LIBO Rate Loans, or an aggregate minimum amount of
$500,000 and an integral multiple thereof, in the case of the conversion into
Base Rate Loans, be, in the case of Base Rate Loans, converted into LIBO Rate
Loans or, in the case of LIBO Rate Loans, be converted into Base Rate Loans or
continued as LIBO Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least
three Business Days before the last day of the then current Interest Period
with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that (x) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of the relevant Lenders, and (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, LIBO Rate Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as
such action does not result in increased costs to the Borrower; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility; and provided,
further, however, that, except for purposes of determining whether any such
increased costs are payable by the Borrower, such Lender shall cause such
foreign branch, Affiliate or international banking facility to comply with the
applicable provisions of clause (b) of Section 4.6 with respect to such LIBO
Rate Loan. In addition, the Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of Section 4.1, 4.2, 4.3
or 4.4, it shall be conclusively assumed that each Lender elected to fund all
LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office's interbank
eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 12:00 noon, New York time, on a Business
Day, the Borrower may, from time to time irrevocably request, on not less than
three nor more than ten Business Days' notice (or such shorter or longer notice
as may be acceptable to the Issuer), in the case of an initial issuance of a
Letter of Credit, and not less than three nor more than ten Business Days'
notice (unless a shorter or longer notice period is acceptable to the Issuer)
prior to the then existing Stated Expiry Date of a Letter of Credit, in the
case of a
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request for the extension of the Stated Expiry Date of a Letter of Credit, that
the Issuer issue, or extend the Stated Expiry Date of, as the case may be, an
irrevocable Letter of Credit on behalf of the Borrower (whether issued for the
account of or on behalf of the Borrower or any of its Subsidiaries) in such
form as may be requested by the Borrower and approved by the Issuer, solely for
the purposes described in Section 7.1.9. Notwithstanding anything to the
contrary contained herein or in any separate application for any Letter of
Credit, the Borrower hereby acknowledges and agrees that it shall be obligated
to reimburse the Issuer upon each Disbursement of a Letter of Credit, and it
shall be deemed to be the obligor for purposes of each such Letter of Credit
issued hereunder (whether the account party on such Letter of Credit is the
Borrower or a Subsidiary of the Borrower). Upon receipt of an Issuance Request,
the Administrative Agent shall promptly notify the Issuer and each Lender
thereof. Each Letter of Credit shall by its terms be stated to expire on a date
(its "Stated Expiry Date") no later than the earlier to occur of (i) the
Revolving Loan Commitment Termination Date or (ii) one year from the date of
its issuance. The Issuer will make available to the beneficiary thereof the
original of each Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan
Commitment shall be deemed to have irrevocably purchased from the Issuer, to
the extent of its Percentage in respect of Revolving Loans, and the Issuer
shall be deemed to have irrevocably granted and sold to such Lender a
participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation and all rights with respect
thereto), and such Lender shall, to the extent of its Percentage in respect of
Revolving Loans, be responsible for reimbursing promptly (and in any event
within one Business Day) the Issuer for Reimbursement Obligations which have
not been reimbursed by the Borrower in accordance with Section 2.6.3. In
addition, such Lender shall, to the extent of its Percentage in respect of
Revolving Loans, be entitled to receive a ratable portion of the Letter of
Credit fees payable pursuant to Section 3.3.3 with respect to each Letter of
Credit and of interest payable pursuant to Section 3.2 with respect to any
Reimbursement Obligation. To the extent that any Lender has reimbursed the
Issuer for a Disbursement as required by this Section, such Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from the Borrower or otherwise) in respect of such Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The
Issuer will notify the Borrower and the
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Administrative Agent promptly of the presentment for payment of any drawing
under any Letter of Credit issued by the Issuer, together with notice of the
date (the "Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the Issuer shall make such payment to the beneficiary (or
its designee) of such Letter of Credit. Prior to 12:00 noon, New York time, on
the first Business Day following the Disbursement Date (the "Disbursement Due
Date"), the Borrower will reimburse the Administrative Agent, for the account
of the Issuer, for all amounts which the Issuer has disbursed under such Letter
of Credit, together with interest thereon at the rate per annum otherwise
applicable to Revolving Loans (made as Base Rate Loans) from and including the
Disbursement Date to but excluding the Disbursement Due Date and, thereafter
(unless such Disbursement is converted into a Base Rate Loan on the
Disbursement Due Date), at a rate per annum equal to the rate per annum then in
effect with respect to overdue Revolving Loans (made as Base Rate Loans)
pursuant to Section 3.2.2 for the period from the Disbursement Due Date through
the date of such reimbursement; provided, however, that, if no Default shall
have then occurred and be continuing, unless the Borrower has notified the
Administrative Agent no later than one Business Day prior to the Disbursement
Due Date that it will reimburse the Issuer for the applicable Disbursement,
then the amount of the Disbursement shall be deemed to be a Borrowing of
Revolving Loans constituting a Base Rate Loan and following the giving of
notice thereof by the Administrative Agent to the Lenders, each Lender with a
Revolving Loan Commitment (other than the Issuer) will deliver to the Issuer on
the Disbursement Due Date immediately available funds in an amount equal to
such Lender's Percentage of such Borrowing. Each conversion of Disbursement
amounts into Revolving Loans shall constitute a representation and warranty by
the Borrower that on the date of the making of such Revolving Loans all of the
statements set forth in Section 5.2.1 are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Base Rate Loan pursuant to Section 2.6.2, and, upon the failure of the Borrower
to reimburse the Issuer and the giving of notice thereof by the Administrative
Agent to the Lenders, each Lender's (to the extent it has a Revolving Loan
Commitment) obligation under Section 2.6.1 to reimburse the Issuer or fund its
Percentage of any Disbursement converted into a Base Rate Loan, shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower or such
Lender, as the case may be, may have
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or have had against the Issuer or any such Lender, including any defense based
upon the failure of any Disbursement to conform to the terms of the applicable
Letter of Credit (if, in the Issuer's good faith opinion, such Disbursement is
determined to be appropriate) or any non-application or misapplication by the
beneficiary of the proceeds of such Letter of Credit; provided, however, that
after paying in full its Reimbursement Obligation hereunder, nothing herein
shall adversely affect the right of the Borrower or such Lender, as the case
may be, to commence any proceeding against the Issuer for any wrongful
Disbursement made by the Issuer under a Letter of Credit as a result of acts or
omissions constituting gross negligence or willful misconduct on the part of
the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during
the continuation of any Event of Default of the type described in clauses (b)
through (d) of Section 8.1.9 with respect to any Obligor (other than immaterial
Subsidiaries) or, with notice from the Administrative Agent acting at the
direction of the Required Lenders, upon the occurrence and during the
continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is
undrawn and available under all Letters of Credit issued and
outstanding shall, without demand upon or notice to the Borrower or
any other Person, be deemed to have been paid or disbursed by the
Issuer under such Letters of Credit (notwithstanding that such amount
may not in fact have been so paid or disbursed); and
(b) upon notification by the Administrative Agent to the
Borrower of its obligations under this Section, the Borrower shall be
immediately obligated to reimburse the Issuer for the amount deemed to
have been so paid or disbursed by the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time as the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
Agent shall return to the Borrower all amounts then on deposit with the
Administrative Agent pursuant to this Section, together with accrued interest
at the Federal Funds Rate, which have not been applied to the satisfaction of
such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and,
to the extent set forth in Section 2.6.1, each
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Lender with a Revolving Loan Commitment, shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary thereof. The
Issuer (except to the extent of its own gross negligence or willful misconduct)
shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a Letter of
Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon the Borrower, each Obligor and each such
Lender, and shall not put the Issuer under any resulting liability to the
Borrower, any Obligor or any such Lender, as the case may be.
SECTION 2.7. Notes. Each Lender's Loans under a Commitment shall be
evidenced by a Note payable to the order of such Lender in a maximum principal
amount equal to such Lender's Percentage of the original applicable Commitment
Amount. The Borrower hereby irrevocably authorizes each Lender to make (or
cause to be made) appropriate notations on the grid attached to such Lender's
Notes (or on any continuation of such grid), which notations, if
-46-
made, shall evidence, inter alia, the date of, the outstanding principal of,
and the interest rate and Interest Period applicable to the Loans evidenced
thereby. Such notations shall be conclusive and binding on the Borrower absent
manifest error; provided, however, that the failure of any Lender to make any
such notations shall not limit or otherwise affect any Obligations of the
Borrower or any other Obligor.
SECTION 2.8. Registered Notes. (a) Any Non-U.S. Lender that could
become completely exempt from withholding of any Taxes in respect of payment of
any interest due to such Non-U.S. Lender under this Agreement if the Notes held
by such Lender were in registered form for U.S. Federal income tax purposes may
request the Borrower (through the Administrative Agent), and the Borrower
agrees (i) to exchange for any Notes held by such Lender, or (ii) to issue to
such Lender on the date it becomes a Lender, promissory notes(s) registered as
provided in clause (b) of this Section 2.8 (each, a "Registered Note", to be in
substantially the form of Exhibit A-6 hereto). Registered Notes may not be
exchanged for Notes that are not Registered Notes.
(b) The Borrower shall maintain, or cause to be maintained, a register
(the "Register") (which, at the request of the Borrower, shall be kept by the
Administrative Agent on behalf of the Borrower at no extra charge to the
Borrower at the address to which notices to the Administrative Agent are to be
sent under this Agreement) on which it enters the name of the registered owner
of the Non-U.S. Lender's Obligation(s) evidenced by a Registered Note.
(c) The Register shall be available for inspection by the Borrower and
any Lender at any reasonable time upon reasonable prior notice.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans; provided, however, that
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(i) any such prepayment of the Term-A Loans, Term-B
Loans or Term-C Loans shall be made pro rata among Term-A
Loans, Term-B Loans and Term-C Loans, as applicable, of the
same type and if applicable, having the same Interest Period
of all Lenders that have made such Term-A Loans, Term-B Loans
or Term-C Loans, and any such prepayment of Revolving Loans
shall be made pro rata among the Revolving Loans of the same
type and, if applicable, having the same Interest Period of
all Lenders that have made such Revolving Loans;
(ii) the Borrower shall comply with Section 4.4 in
the event that any LIBO Rate Loan is prepaid on any day other
than the last day of the Interest Period for such Loan;
(iii) all such voluntary prepayments shall require
at least one Business Day's notice in the case of Base Rate
Loans, three Business Days' notice in the case of LIBO Rate
Loans, but no more than five Business Days' notice in the
case of any Loans, in each case in writing to the
Administrative Agent; and
(iv) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans, in an aggregate minimum
amount of $1,000,000 and an integral multiple of $500,000
and, in the case of Base Rate Loans, in an aggregate minimum
amount of $500,000 and an integral multiple of $500,000; or
(b) shall, on each date when any reduction in the then
existing Borrowing Base Amount shall become effective, make a
mandatory prepayment of Revolving Loans and (if necessary) deposit
with the Administrative Agent cash collateral for Letter of Credit
Outstandings, in an aggregate amount equal to the excess, if any, of
the aggregate outstanding principal amount of all Revolving Loans and
Letter of Credit Outstandings over the then existing Borrowing Base
Amount;
(c) shall, no later than one Business Day following the
receipt of any Net Disposition Proceeds or Net Debt Proceeds by the
Borrower or any of its Subsidiaries (other than pursuant to the
Preferred Stock Sale, the Equity Issuance and Contribution, the
issuance of the Seller Note, the Acquisition, the Merger and the other
transactions contemplated in the Transaction Agreement), deliver to
the Administrative Agent a calculation of the amount of such Net
Disposition Proceeds or Net Debt Proceeds, as the case may be, and
make a mandatory prepayment of the Term Loans in an
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amount equal to 100% of such Net Disposition Proceeds or Net Debt
Proceeds, as the case may be, to be applied as set forth in Section
3.1.2;
(d) shall, no later than five Business Days following the
delivery by the Borrower of its annual audited financial reports
required pursuant to clause (b) of Section 7.1.1 (beginning with the
financial reports delivered in respect of the 1997 Fiscal Year),
deliver to the Administrative Agent a calculation of the Excess Cash
Flow for the prior Fiscal Year and, no later than five Business Days
following the delivery of such calculation, make a mandatory
prepayment of the Term Loans in an amount equal to 75% of the Excess
Cash Flow (if any) for such Fiscal Year, to be applied as set forth in
Section 3.1.2; provided, however, with respect to the calculation and
prepayment in respect of Excess Cash Flow for the 1997 Fiscal Year,
such calculation and prepayment shall include Excess Cash Flow for the
period from the Closing Date through the end of the 1997 Fiscal Year;
(e) shall, concurrently with the receipt of any Net Equity
Proceeds (other than pursuant to the Preferred Stock Sale or the
Equity Issuance and Contribution) by the Borrower or any of its
Subsidiaries, deliver to the Administrative Agent a calculation of the
amount of such Net Equity Proceeds, and no later than five Business
Days following the delivery of such calculation, make a mandatory
prepayment of the Term Loans in an amount equal to 50% of such Net
Equity Proceeds to be applied as set forth in Section 3.1.2;
(f) shall, within 60 days following the receipt by the
Borrower or any of its Subsidiaries of any Casualty Proceeds in excess
of $1,000,000 (individually or in the aggregate over the course of a
Fiscal Year), make a mandatory prepayment of the Term Loans in an
amount equal to 100% of such Casualty Proceeds, to be applied as set
forth in Section 3.1.2; provided, that no mandatory prepayment of
Casualty Proceeds shall be required under this clause if the Borrower
informs the Agents no later than 60 days following the occurrence of
the Casualty Event resulting in such Casualty Proceeds of its or its
Subsidiary's good faith intention to apply such Casualty Proceeds to
the rebuilding or replacement of such damaged, destroyed or condemned
assets or property and in fact uses such Casualty Proceeds to rebuild
or replace the damaged, destroyed or condemned asset or property
within 365 days following the receipt of such Casualty Proceeds, with
the amount of Casualty Proceeds unused after such 365 day period being
applied to the Loans
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pursuant to Section 3.1.2; provided, further, however, that at any
time when any Event of Default shall have occurred and be continuing
or Casualty Proceeds not applied as provided above shall exceed
$5,000,000, such Casualty Proceeds will be deposited in an account
maintained with the Administrative Agent for disbursement at the
request of the Borrower to pay for such rebuilding or replacement;
(g) shall, on each date when any reduction in the Revolving
Loan Commitment Amount shall become effective, including pursuant to
Section 2.2 or Section 3.1.2, make a mandatory prepayment of Revolving
Loans and (if necessary) deposit with the Administrative Agent cash
collateral for Letter of Credit Outstandings in an aggregate amount
equal to the excess, if any, of the aggregate outstanding principal
amount of all Revolving Loans and Letter of Credit Outstandings over
the Revolving Loan Commitment Amount as so reduced;
(h) shall, on the Stated Maturity Date and on each Quarterly
Payment Date set forth below or occurring during any period set forth
below, make a scheduled repayment of the aggregate outstanding
principal amount, if any, of all Term-A Loans in an amount equal to
the amount set forth below opposite the Stated Maturity Date or such
Quarterly Payment Date or period, as applicable (as such amounts may
have otherwise been reduced pursuant to this Agreement):
TERM A SCHEDULED
QUARTERLY PAYMENT DATE PRINCIPAL
REPAYMENT
===================================== ==========================
December 31, 1996 $1,750,000
March 31, 1997 $1,750,000
June 30, 1997 $1,750,000
September 30, 1997 $1,750,000
December 31, 1997 $2,000,000
March 31, 1998 $2,000,000
June 30, 1998 $2,000,000
September 30, 1998 $2,000,000
December 31, 1998 $2,500,000
March 31, 1999 $2,500,000
June 30, 1999 $2,500,000
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TERM A SCHEDULED
QUARTERLY PAYMENT DATE PRINCIPAL
REPAYMENT
===================================== ==========================
September 30, 1999 $2,500,000
December 31, 1999 $2,750,000
March 31, 2000 $2,750,000
June 30, 2000 $2,750,000
September 30, 2000 $2,750,000
December 31, 2000 $3,000,000
March 31, 2001 $3,000,000
June 30, 2001 $3,000,000
September 30, 2001 $3,000,000
December 31, 2001 $3,000,000
March 31, 2002 $3,000,000
June 30, 2002 $3,000,000
September 30, 2002 $3,000,000
TOTAL: USD$60,000,000
===================================== ==========================
(i) shall, on the Stated Maturity Date and on each Quarterly
Payment Date set forth below or occurring during any period set forth
below, make a scheduled repayment of the aggregate outstanding
principal amount, if any, of all Term-B Loans in an amount equal to
the amount set forth below opposite the Stated Maturity Date or such
Quarterly Payment Date or period, as applicable (as such amounts may
have otherwise been reduced pursuant to this Agreement):
TERM B SCHEDULED
QUARTERLY PAYMENT DATE PRINCIPAL
REPAYMENT
====================================== =========================
December 31, 1996 $150,000
March 31, 1997 $150,000
June 30, 1997 $150,000
September 30, 1997 $150,000
December 31, 1997 $150,000
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TERM B SCHEDULED
QUARTERLY PAYMENT DATE PRINCIPAL
REPAYMENT
====================================== =========================
March 31, 1998 $150,000
June 30, 1998 $150,000
September 30, 1998 $150,000
December 31, 1998 $150,000
March 31, 1999 $150,000
June 30, 1999 $150,000
September 30, 1999 $150,000
December 31, 1999 $150,000
March 31, 2000 $150,000
June 30, 2000 $150,000
September 30, 2000 $150,000
December 31, 2000 $150,000
March 31, 2001 $150,000
June 30, 2001 $150,000
September 30, 2001 $150,000
December 31, 2001 $5,000,000
March 31, 2002 $5,000,000
June 30, 2002 $5,000,000
September 30, 2002 $5,000,000
December 31, 2002 $9,250,000
March 31, 2003 $9,250,000
June 30, 2003 $9,250,000
September 30, 2003 $9,250,000
TOTAL: USD$60,000,000
====================================== =========================
(j) shall, on the Stated Maturity Date and on each Quarterly
Payment Date set forth below or occurring during any period set forth
below, make a scheduled repayment of the aggregate outstanding
principal amount, if any, of all Term-C Loans in an amount equal to
the amount set forth
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below opposite the Stated Maturity Date or such Quarterly Payment Date
or period, as applicable (as such amounts may have otherwise been
reduced pursuant to this Agreement):
TERM C SCHEDULED
QUARTERLY PAYMENT DATE PRINCIPAL
REPAYMENT
===================================== ==========================
December 31, 1996 $100,000
March 31, 1997 $100,000
June 30, 1997 $100,000
September 30, 1997 $100,000
December 31, 1997 $100,000
March 31, 1998 $100,000
June 30, 1998 $100,000
September 30, 1998 $100,000
December 31, 1998 $100,000
March 31, 1999 $100,000
June 30, 1999 $100,000
September 30, 1999 $100,000
December 31, 1999 $100,000
March 31, 2000 $100,000
June 30, 2000 $100,000
September 30, 2000 $100,000
December 31, 2000 $100,000
March 31, 2001 $100,000
June 30, 2001 $100,000
September 30, 2001 $100,000
December 31, 2001 $100,000
March 31, 2002 $100,000
June 30, 2002 $100,000
September 30, 2002 $100,000
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TERM C SCHEDULED
QUARTERLY PAYMENT DATE PRINCIPAL
REPAYMENT
===================================== ==========================
December 31, 2002 $100,000
March 31, 2003 $100,000
June 30, 2003 $100,000
September 30, 2003 $100,000
December 31, 2003 $9,300,000
March 31, 2004 $9,300,000
June 30, 2004 $9,300,000
September 30, 2004 $9,300,000
TOTAL: USD$40,000,000
===================================== ==========================
(k) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans or Obligations pursuant to Section 8.2 or
Section 8.3, repay all Loans and provide the Administrative Agent with
cash collateral in an amount equal to the Letter of Credit
Outstandings, unless, pursuant to Section 8.3, only a portion of all
Loans and Obligations are so accelerated (in which case the portion so
accelerated shall be so prepaid or cash collateralized with the
Administrative Agent); and
(l) shall, at least once in each Fiscal Year and at least six
months after the prior Cleandown Period (or, in the case of the 1997
Fiscal Year, at least six months since the Closing Date) prepay the
Revolving Loans so that for a period of 15 consecutive days (the
"Cleandown Period") no more than $10,000,000 in Loans are outstanding
under the Revolving Loan Commitments.
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans pursuant to clause (a), (b) or
(l) of this Section 3.1.1 shall cause a reduction in the Revolving Loan
Commitment Amount.
SECTION 3.1.2. Application. (a) Subject to clause (b) below, each
prepayment or repayment of principal of the Loans of any Tranche shall be
applied, to the extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second, to the
principal amount thereof being maintained as LIBO Rate Loans.
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(b) Each prepayment of Term Loans made pursuant to clauses (a), (c),
(d), (e) and (f) of Section 3.1.1 shall be applied pro rata to the outstanding
principal amount of all Term-A Loans, Term-B Loans and Term-C Loans (with the
amount of such prepayment of the Term-A Loans, the Term-B Loans and the Term-C
Loans being applied to the remaining Term-A Loan, Term-B Loan or Term-C Loan
amortization payments required pursuant to clauses (h), (i) and (j) of Section
3.1.1, in each case pro rata in accordance with the amount of each such
remaining Term Loan amortization payment), until all such Term-A Loans, Term-B
Loans and Term-C Loans have been paid in full; provided, however, that if (but
only if) the Borrower solicits an election (which solicitation must be made at
least five Business Days prior to any applicable prepayment and must be made
simultaneously to all Lenders with Term-B Loans or Term-C Loans outstanding)
(i) any Lender that has Term-B Loans or Term-C Loans outstanding may, by
delivering a notice to the Administrative Agent at least one Business Day prior
to the date that such prepayment is to be made, elect not to have its pro rata
share of Term-B Loans or Term-C Loans, as the case may be, prepaid, and upon
any such election the Administrative Agent shall apply the amount that
otherwise would have prepaid such Lender's Term-B Loans or Term-C Loans, as the
case may be, to a mandatory prepayment of the Term-A Loans (until repaid in
full), and then to a reduction in the Revolving Loan Commitment Amount.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. (a) Each Base Rate Loan shall accrue interest on
the unpaid principal amount thereof for each day from and including the day
upon which such Loan was made or converted to a Base Rate Loan to but excluding
the date such Loan is repaid or converted to a LIBO Rate Loan at a rate per
annum equal to the sum of the Alternate Base Rate for such day plus the
Applicable Margin for such Loan on such day.
(b) Each LIBO Rate Loan shall accrue interest on the unpaid principal
amount thereof for each day during each Interest Period applicable thereto at a
rate per annum equal to the sum of the LIBO Rate (Reserve Adjusted) for such
Interest Period plus the Applicable Margin for such Loan on such day.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
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SECTION 3.2.2. Post-Maturity Rates. After the date any principal
amount of any Loan shall have become due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise), or any other monetary
Obligation (other than overdue Reimbursement Obligations which shall bear
interest as provided in Section 2.6.2) of the Borrower shall have become due
and payable, the Borrower shall pay, but only to the extent permitted by law,
interest (after as well as before judgment) on such amounts at a rate per annum
equal to
(a) in the case of any overdue principal of Loans, overdue
interest thereon, overdue commitment fees or other overdue amounts
owing in respect of Loans or other obligations (or the related
Commitments) under a particular Tranche, the rate that would otherwise
be applicable to Base Rate Loans under such Tranche pursuant to
Section 3.2.1 plus 2%; and
(b) in the case of overdue monetary Obligations (other than
as described in clause (a)), the Alternate Base Rate plus 3.75%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan, of the unpaid interest
accrued through such date on the principal so paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial Borrowing
hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period);
(e) with respect to the principal amount of any Base Rate
Loans converted into LIBO Rate Loans on a day when interest would not
otherwise have been payable pursuant to clause (c), on the date of
such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
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Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non- refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for each day during the period (including any portion thereof when
any of the Lenders' Revolving Loan Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Closing Date and continuing to but excluding the Revolving Loan Commitment
Termination Date, a commitment fee on such Lender's Percentage of the unused
portion, whether or not then available, of the Revolving Loan Commitment Amount
(net of Letter of Credit Outstandings) for such day at a rate per annum equal
to the Applicable Commitment Fee for such day. Such commitment fees shall be
payable by the Borrower in arrears on each Quarterly Payment Date, commencing
with the first such day following the Closing Date, and on the Revolving Loan
Commitment Termination Date. Any term or provision hereof to the contrary
notwithstanding, commitment fees payable for any period prior to the Closing
Date shall be payable in accordance with the Fee Letter.
SECTION 3.3.2. Agents' and Arrangers' Fees. The Borrower agrees to pay
to each of the Agents and the Arrangers, for their own respective accounts, the
non-refundable fees in the amounts and on the dates set forth in the Fee
Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender that has a Revolving Loan Commitment, a Letter of Credit fee for each
day on which there shall be any Letters of Credit outstanding on the aggregate
undrawn amount of all Letters of Credit outstanding on such day, at a rate per
annum equal to the Applicable Margin for such day for Revolving Loans that are
maintained as LIBO Rate Loans. The Borrower further agrees to pay to the Issuer
for its own account, for each day on which there shall be any Letters of Credit
outstanding, an issuance fee on the aggregate undrawn amount of all Letters of
Credit outstanding on such day at a rate per annum equal to 1/4 of 1%. All such
fees shall be payable quarterly in arrears on each Quarterly Payment Date and
on the Revolving Loan Commitment Termination Date.
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ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the
Lenders, be conclusive and binding on the Borrower) that the introduction of or
any change in or in the interpretation of any law, in each case after the date
upon which such Lender shall have become a Lender hereunder, makes it unlawful,
or any central bank or other governmental authority asserts, after such date,
that it is unlawful, for such Lender to make, continue or maintain any Loan as,
or to convert any Loan into, a LIBO Rate Loan, the obligations of such Lender
to make, continue, maintain or convert any Loans as LIBO Rate Loans shall, upon
such determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist (with the date of such notice being the "Reinstatement Date"), and (i)
all LIBO Rate Loans previously made by such Lender shall automatically convert
into Base Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion and (ii) all
Loans thereafter made by such Lender and outstanding prior to the Reinstatement
Date shall be made as Base Rate Loans, with interest thereon being payable on
the same date that interest is payable with respect to the corresponding
Borrowing of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative
Agent shall have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent
in its relevant market; or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the
Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans
shall forthwith be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
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SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any amounts, whether or not constituting
Taxes, referred to in Section 4.6) arising as a result of any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority that occurs after the date upon which such
Lender became a Lender hereunder. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the
Borrower directly to such Lender within five days of its receipt of such
notice, and such notice shall, in the absence of manifest error, be conclusive
and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan, but excluding any loss of margin after the date of any such
conversion, repayment, prepayment or failure to borrow, continue or convert) as
a result of
(a) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than the
scheduled last day of the Interest Period applicable thereto, whether
pursuant to Section 3.1 or otherwise;
(b) any Loans not being borrowed as LIBO Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/ Conversion Notice
therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to
the Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of
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such Lender) reimburse such Lender for such loss or expense. Such written
notice (which shall include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority, in each case occurring after the applicable
Lender becomes a Lender hereunder, affects or would affect the amount of
capital required or expected to be maintained by any Lender or any Person
controlling such Lender, and such Lender determines (in its sole and absolute
discretion) that the rate of return on its or such controlling Person's capital
as a consequence of its Commitments, participation in Letters of Credit or the
Loans made by such Lender is reduced to a level below that which such Lender or
such controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount, such Lender
may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. (a) All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations and fees)shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes
and other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding (i) any future
income, excise, stamp or franchise taxes and other similar taxes, fees, duties,
withholding or other charges imposed on either of the Agents as a result of a
present or former connection between the applicable lending office (or
office through which it performs any of its actions as Agent) of such Agent,
and any future income, excise, stamp or franchise taxes and other similar
taxes, fees, duties, withholding or other charges imposed on any Lender as a
result of a present or former connection between the applicable lending office
of a Lender, in each case and the jurisdiction of the governmental authority
imposing such tax or any political subdivision or taxing
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authority thereof or therein (other than any such connection arising solely
from such Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or taken any action to enforce, this
Agreement and any Note) or (ii) any future income, excise, stamp or franchise
taxes and other similar taxes, fees, duties, withholding or other charges to
the extent that they are in effect and would apply as of the date any Person
becomes a Lender or Assignee Lender, or as of the date that any Lender changes
its applicable lending office, to the extent such taxes become applicable as a
result of such change (other than a change in an applicable lending office made
pursuant to Section 4.10 below) (such non-excluded items being called "Taxes").
In the event that any withholding or deduction from any payment to be made by
the Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will
(i) pay directly to the relevant taxing authority the
full amount required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation reasonably satisfactory to the
Administrative Agent evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the
Lenders such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Lender will equal the
full amount such Lender would have received had no such withholding or
deduction been required, provided, however, that the Borrower shall
not be required to increase any such amounts payable to any Lender
that is not organized under the laws of the United States or a state
thereof if such Lender fails to comply with the requirements of clause
(b) of Section 4.6.
Moreover, if any Taxes are directly asserted against either of the Agents or
any Lender with respect to any payment received by such Agents or such Lender
hereunder, such Agents or such Lender may pay such Taxes and the Borrower will
promptly pay to such Person such additional amount (including any penalties,
interest or expenses) as is necessary in order that the net amount received by
such Person (including any Taxes on such additional amount) shall equal the
amount of such Taxes paid by such Person; provided, however, that the Borrower
shall not be obligated to make payment to the Lenders or the Agents (as the
case may be) pursuant to this sentence in respect of interest attributable to
any Taxes, if written demand therefor has not been made by such Lenders or the
Agents within 60 days from the date on which such Lenders or the Agents knew of
the imposition of Taxes by the
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relevant taxing authority or for any additional imposition which may arise from
the failure of the Lenders or the Agents to apply payments in accordance with
the tax law after the Borrower has made the payments required hereunder. After
the Lenders or the Agents (as the case may be) learn of the imposition of
Taxes, such Lenders and the Agents will act in good faith to notify the
Borrower of its obligations hereunder as soon as reasonably possible.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
(b) Each Non-U.S. Lender shall, (i) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender listed on
the signature pages hereof, or, in the case of an Assignee Lender, on or prior
to the date it becomes a Lender, execute and deliver to the Borrower and the
Administrative Agent, two or more (as the Borrower or the Agents may reasonably
request) United States Internal Revenue Service Forms 4224 or Forms 1001 or,
solely if such Lender is claiming exemption from United States withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", United States Internal Revenue Service Forms W-8 and a
certificate signed by a duly authorized officer of such Lender representing
that such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code, or such other forms or documents (or successor forms or documents),
appropriately completed, establishing that payments to such Lender are exempt
from withholding or deduction of Taxes; and (ii) deliver to the Borrower and
the Administrative Agent two further copies of any such form or documents on or
before the date that any such form or document expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent such
form or document previously delivered by it to the Borrower.
(c) If the Borrower determines in good faith that a reasonable basis
exists for contesting the imposition of a Tax with respect to a Lender or
either of the Agents, the relevant Lender or Agent, as the case may be, shall
cooperate with the Borrower in challenging such Tax at the Borrower's expense
if requested by the Borrower.
(d) If a Lender or an Agent shall receive a refund (including any
offset or credits from a taxing authority (as a result of any error in the
imposition of Taxes by such taxing
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authority) of any Taxes paid by the Borrower pursuant to subsection 4.6(a)
above), such Lender or the Agent (as the case may be) shall promptly pay the
Borrower the amount so received, with interest from the taxing authority with
respect to such refund.
(e) Each Lender and each Agent agrees, to the extent reasonable and
without material cost to it, to cooperate with the Borrower to minimize any
amounts payable by the Borrower under this Section 4.6.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes or any other Loan Document shall be made by the Borrower
to the Administrative Agent for the pro rata account of the Lenders, Agents or
Arrangers, as applicable, entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 1:00 p.m., New York time, on the date
due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Borrower.
Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Lender, Agent or Arranger,
as the case may be, its share, if any, of such payments received by the
Administrative Agent for the account of such Lender, Agent or Arranger, as the
case may be. All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days (or, in the case of interest on a Base Rate Loan, 365
days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (i) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligations (other
than pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro
rata share of payments then or therewith obtained by all Lenders entitled
thereto, such Lender shall purchase from the other Lenders such participation
in Credit Extensions made by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery ratably with
each of them;
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provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase
shall be rescinded and each Lender which has sold a participation to the
purchasing Lender shall repay to the purchasing Lender the purchase price to
the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of (i) the amount
of such selling Lender's required repayment to the purchasing Lender in respect
of such recovery, to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower agrees that
any Lender so purchasing a participation from another Lender pursuant to this
Section may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 4.9) with respect to such participation
as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent
with the rights of the Lenders entitled under this Section to share in the
benefits of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Event of Default described in clauses (b) through (d) of Section 8.1.9 with
respect to any Obligor (other than immaterial Subsidiaries) or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, to the fullest extent permitted by law, have the right to appropriate
and apply to the payment of the Obligations then due to it, and (as security
for such Obligations) the Borrower hereby grants to each Lender a continuing
security interest in, any and all balances, credits, deposits, accounts or
moneys of the Borrower then or thereafter maintained with or otherwise held by
such Lender; provided, however, that any such appropriation and application
shall be subject to the provisions of Section 4.8. Each Lender agrees promptly
to notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff under applicable law or otherwise)
which such Lender may have.
SECTION 4.10. Mitigation. Each Lender agrees that if it makes any
demand for payment under Sections 4.3, 4.4, 4.5, or
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4.6, or if any adoption or change of the type described in Section 4.1 shall
occur with respect to it, it will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under Sections 4.3, 4.4, 4.5, or 4.6, or would eliminate or reduce the effect
of any adoption or change described in Section 4.1.
SECTION 4.11. Replacement of Lenders. Each Lender hereby severally
agrees as set forth in this Section. If any Lender (a "Subject Lender") makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to Section 4.2, 4.3, 4.5 or 4.6, or gives notice pursuant to
Section 4.1 requiring a conversion of such Subject Lender's LIBO Rate Loans to
Base Rate Loans or suspending such Lender's obligation to make Loans as, or to
convert Loans into, LIBO Rate Loans, the Borrower may, within 90 days of
receipt by the Borrower of such demand or notice (or the occurrence of such
other event causing the Borrower to be required to pay such compensation), as
the case may be, give notice (a "Replacement Notice") in writing to the Agents
and such Subject Lender of its intention to replace such Subject Lender with a
financial institution (a "Replacement Lender") designated in such Replacement
Notice. If the Agents shall, in the exercise of their reasonable discretion and
within 30 days of their receipt of such Replacement Notice, notify the Borrower
and such Subject Lender in writing that the designated financial institution is
satisfactory to the Agents (such consent not being required where the
Replacement Lender is already a Lender), then such Subject Lender shall, so
long as no Default or Event of Default shall have occurred and be continuing
(and subject to the payment of any amounts due pursuant to Section 4.4),
assign, in accordance with Section 10.11.1, all of its Commitments, Loans,
Notes and other rights and obligations under this Agreement and all other Loan
Documents (including, without limitation, Reimbursement Obligations) to such
designated financial institution; provided, however, that (i) such assignment
shall be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Subject Lender and such designated
financial institution and (ii) the purchase price paid by such designated
financial institution shall be in the amount of such Subject Lender's Loans and
its applicable Percentage of outstanding Reimbursement Obligations, together
with all accrued and unpaid interest and
fees in respect thereof, plus all other amounts (including the amounts demanded
and unreimbursed under Sections 4.2, 4.3, 4.5 and 4.6), owing to such Subject
Lender hereunder. Upon the effective date of an assignment described above, the
Borrower
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shall issue a replacement Note or Notes, as the case may be, to such designated
financial institution or Replacement Lender, as applicable, and such
institution shall become a "Lender" for all purposes under this Agreement and
the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
to fund the initial Credit Extension shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Agents shall have received from
each Obligor a certificate, dated the date of the initial Credit Extension, of
its Secretary or Assistant Secretary as to (i) resolutions of its Board of
Directors then in full force and effect authorizing the execution, delivery and
performance of each Loan Document to be executed by it, and (ii) the incumbency
and signatures of those of its officers authorized to act with respect to each
Loan Document executed by it, upon which certificate each Agent and each Lender
may conclusively rely until it shall have received a further certificate of the
Secretary or Assistant Secretary of such Obligor canceling or amending such
prior certificate.
SECTION 5.1.2. Acquisition Documents. The Agents shall have received
(with copies for each Lender that shall have expressly requested copies
thereof) copies of fully executed versions of the Acquisition Documents,
certified to be true and complete copies thereof by an Authorized Officer of
the Borrower. The Transaction Agreement shall be in full force and effect and
shall not have been modified or waived in any material respect, nor shall there
have been any forbearance to exercise any material rights with respect to any
of the terms or provisions relating to the conditions to the consummation of
the Acquisition or the Merger set forth in the Transaction Agreement unless
otherwise agreed to by the Required Lenders.
SECTION 5.1.3. Consummation of Merger. The Agents shall have received
evidence satisfactory to each of them that all actions necessary to consummate
the Merger (including the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware) shall have been taken in
accordance with Section 251 of the Delaware General Corporation Law.
SECTION 5.1.4. Closing Date Certificate. Each of the Agents shall have
received, with counterparts for each Lender,
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the Closing Date Certificate, substantially in the form of Exhibit D hereto,
dated the date of the initial Credit Extension and duly executed and delivered
by the chief executive, financial or accounting (or equivalent) Authorized
Officer of the Borrower, in which certificate the Borrower shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of the Borrower made as of such date
under this Agreement, and, at the time such certificate is delivered, such
statements shall in fact be true and correct.
SECTION 5.1.5. Delivery of Notes. The Agents shall have received, for
the account of each Lender, the Notes duly executed and delivered by the
Borrower for each Lender.
SECTION 5.1.6. Assumption Agreement. The Agents shall have received
the Assumption Agreement, dated the date hereof, duly executed by an Authorized
Officer of each of the Borrower, Holdco and the Seller.
SECTION 5.1.7. Subsidiary Guaranty. The Agents shall have received the
Subsidiary Guaranty, dated the date hereof, duly executed and delivered by an
Authorized Officer of each U.S. Subsidiary of the Borrower in existence on the
date of the initial Credit Extension (after giving effect to the Acquisition).
SECTION 5.1.8. Pledge Agreements. The Agents shall have
received executed counterparts of
(a) the Holdco Pledge Agreement, dated as of the date hereof,
duly executed by an Authorized Officer of Holdco, together with the
certificates evidencing all of the issued and outstanding shares of
Capital Stock of the Borrower (other than the Preferred Stock) which
shall be pledged pursuant to the Holdco Pledge Agreement, which
certificates shall in each case be accompanied by undated stock powers
duly executed in blank;
(b) the Borrower Pledge Agreement, dated as of the date
hereof, duly executed by the Borrower (after giving effect to the
Acquisition), together with the certificates evidencing all of the
issued and outstanding shares of Capital Stock of each Subsidiary of
the Borrower which shall be pledged pursuant to the Borrower Pledge
Agreement, which certificates shall in each case be accompanied by
undated stock powers duly executed in blank; and
(c) the Subsidiary Pledge Agreement, dated as of the date
hereof, duly executed by each U.S. Subsidiary of the
Borrower (after giving effect to the Acquisition) which in
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turn has any Subsidiaries, together with the certificates evidencing
all of the issued and outstanding shares of Capital Stock of each such
indirect Subsidiary of the Borrower which shall be pledged pursuant to
such Subsidiary Pledge Agreement, which certificates shall in each
case be accompanied by undated stock powers duly executed in blank;
provided, that neither the Borrower nor any of its Subsidiaries shall be
required to pledge in excess of 65% of the outstanding voting stock of any
Non-U.S. Subsidiary. If any securities pledged pursuant to a Pledge Agreement
are uncertificated securities, the Administrative Agent shall have received
confirmation and evidence satisfactory to it that appropriate book entries have
been made in the relevant books or records of a financial intermediary or the
issuer of such securities, as the case may be, or other appropriate steps have
been taken under applicable law resulting in the perfection of the security
interest granted in favor of the Administrative Agent in such securities
pursuant to the terms of the applicable Pledge Agreement.
SECTION 5.1.9. Security Agreement. The Agents shall have received
executed counterparts of the Borrower Security Agreement and the Subsidiary
Security Agreement, dated as of the date hereof, duly executed by the Borrower
or the relevant U.S. Subsidiaries, together with
(a) executed Uniform Commercial Code financing statements
(Form UCC-1) naming the Borrower or the relevant U.S. Subsidiary as
the debtor and the Administrative Agent as the secured party, or other
similar instruments or documents, to be filed under the Uniform
Commercial Code of all jurisdictions as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the security
interest of the Administrative Agent pursuant to the Security
Agreements (provided that perfection of security interests in motor
vehicles owned as of the Closing Date by the Borrower or any of its
Subsidiaries shall not be required); and
(b) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Agents, dated a date reasonably
near to the date of the initial Credit Extension, listing all
effective financing statements which name the Borrower or the relevant
U.S. Subsidiary (under its present name and any previous names) as the
debtor and which are filed in the jurisdictions in which filings were
made pursuant to clause (a) above, together with copies of such
financing statements.
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SECTION 5.1.10. Financial Information, etc. The Agents shall have
received, with counterparts for each Lender,
(a) the (i) unaudited consolidated profit and loss and cash
flow statements of Rust and its Subsidiaries for the fiscal years
ended December 31, 1994 and December 31, 1995, and (ii) an audited
consolidated balance sheet of Rust and its Subsidiaries as at June 30,
1996;
(b) a pro forma consolidated balance sheet of the Borrower
and its Subsidiaries, as of August 31, 1996 (the "Pro Forma Balance
Sheet"), certified by the chief financial or accounting Authorized
Officer of the Borrower, giving effect to the consummation of the
Acquisition, the Equity Issuance and Contribution, the Preferred Stock
Sale and all the transactions contemplated by this Agreement and
reflecting the proposed legal and capital structure of the Borrower;
and
(c) a Borrowing Base Certificate calculated as of August 31,
1996,
SECTION 5.1.11. Solvency, etc. The Agents shall have received a
solvency certificate from the chief financial Authorized Officer of the
Borrower, dated the date of the initial Credit Extension, in form and substance
satisfactory to the Agents.
SECTION 5.1.12. Issuance of the Seller Note. The Borrower shall have
duly authorized, executed and delivered the Seller Note and all other
certificates, documents and agreements entered into in connection therewith,
Holdco shall have duly assumed the obligations of the Borrower with respect to
the Seller Note and the Borrower shall have been released from all such
obligations and all certificates, documents, agreements in connection
therewith, and the Agents shall have received true and correct copies of the
executed Seller Note and all other certificates, documents, agreements,
consents and opinions furnished pursuant to or in connection therewith and with
such assumption by Holdco, and the terms, conditions and pricing of which shall
be satisfactory in all respects to the Agents.
SECTION 5.1.13. Equity Issuance and Contribution and Preferred Stock
Sale. The Agents shall have received evidence satisfactory to each of them that
(i) the Equity Issuance and Contribution shall have been consummated and as a
result thereof Holdco shall have received cash proceeds of not less than
$10,012,500 from the Purchasers as consideration for its issuance to them of
80.1% of the common stock of Holdco and Holdco shall have made a cash capital
contribution to the equity of the
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Borrower in an amount of not less than $10,012,500, and (ii) the Preferred
Stock Sale shall have been consummated and as a result thereof the Borrower
shall have received cash proceeds of not less than $20,025,000 from the
Purchasers as consideration for its issuance to them of 80.1% of the Preferred
Stock.
SECTION 5.1.14. Closing Fees, Expenses, etc. The Agents and the
Arrangers shall have received, each for its own respective account, or, in the
case of the Administrative Agent, for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable pursuant to Sections 3.3
and 10.3, if then invoiced.
SECTION 5.1.15. Patent Security Agreement. The Administrative Agent
shall have received each Patent Security Agreement, dated as of the date of the
initial Credit Extension, duly executed and delivered by the Borrower and each
U.S.
Subsidiary that has rights to patents.
SECTION 5.1.16. Litigation. There shall exist no litigation, inquiry
or investigation contesting the Acquisition, the Merger, the Equity Issuance
and Contribution, the Preferred Stock Sale, this Agreement or the Seller Note
issuance or any other aspect of the Transaction, or which could reasonably be
expected to have a material adverse effect on the property, financial
condition, operations, prospects or business of the Borrower and its
Subsidiaries, taken as a whole, or Holdco and its Subsidiaries, taken as a
whole.
SECTION 5.1.17. Material Adverse Change. There shall have been no
material adverse change in the property, financial condition, operations,
prospects or business of Rust and its Subsidiaries, taken as a whole, since
December 31, 1995.
SECTION 5.1.18. Reliance Letters. The Agents shall, unless otherwise
agreed, have received reliance letters, dated the date of the making of the
initial Credit Extension and addressed to each Lender and each Agent, in
respect of each of the legal opinions delivered in connection with (i) the
Acquisition, the Merger, the Equity Issuance and Contribution and the Preferred
Stock Sale and (ii) the issuance and assumption of the Seller Note.
SECTION 5.1.19. Opinions of Counsel. The Agents shall have
received opinions, dated the date of the initial Credit Extension
and addressed to the Agents and all Lenders from
(a) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special New York counsel to each
of the Obligors, in substantially the form of Exhibit K-1 hereto;
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(b) ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, special Illinois counsel to the
Seller, in substantially the form of Exhibit K-2 hereto; and
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Corporate Counsel of WMX
Technologies, Inc., in form and substance satisfactory to the Agents.
SECTION 5.1.20. Insurance. The Agents shall have received satisfactory
evidence of the existence of insurance in compliance with Section 7.1.4
(including all endorsements included therein), and the Administrative Agent
shall be named additional insured or loss payee, on behalf of the Lenders, in
respect of all proceeds payable in respect of such insurance, pursuant to
documentation reasonably satisfactory to the Agents and the Borrower.
SECTION 5.1.21. Perfection Certificate. The Administrative Agent shall
have received the Perfection Certificate, dated as of the date of the initial
Credit Extension, duly executed and delivered by an Authorized Officer of the
Borrower.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
the Issuer to make any Credit Extension (including the initial Credit
Extension) shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension the following statements
shall be true and correct:
(a) the representations and warranties set forth in Article
VI and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request. The Agents shall have
received a Borrowing Request, if Loans are being requested, or an Issuance
Request, if a Letter of Credit is being issued or extended. Each of the
delivery of a Borrowing Request or Issuance Request and the acceptance by the
Borrower of such Credit Extension shall constitute a representation and
warranty by the Borrower that on the date of such Credit Extension (both
immediately before and after giving effect to such Credit
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Extension and the application of the proceeds thereof) the statements made in
Section 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Agents to enter
into this Agreement and to make Credit Extensions hereunder, the Borrower
represents and warrants unto the Agents and each Lender as set forth in this
Article VI.
SECTION 6.1. Organization, etc. The Borrower and each of the
Borrower's Subsidiaries (a) is a corporation validly organized and existing and
in good standing to the extent required under the laws of the jurisdiction of
its incorporation, is duly qualified to do business and is in good standing as
a foreign corporation to the extent required under the laws of each
jurisdiction where the nature of its business requires such qualification,
except to the extent that the failure to qualify would not reasonably be
expected to result in a Material Adverse Effect, and (b) has full power and
authority and holds all requisite governmental licenses, permits and other
approvals to (i) enter into and perform its Obligations in connection with the
Transaction and under this Agreement, the Notes and each other Loan Document to
which it is a party and (ii) own and hold under lease its property and to
conduct its business substantially as currently conducted by it except, in the
case of this clause (b)(ii), where the failure could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed
or to be executed by it and the Borrower's and, where applicable, each such
other Obligor's participation in the consummation of the Transaction are within
the Borrower's and each such Obligor's corporate powers, have been duly
authorized by all necessary corporate action, and do not
(a) contravene the Borrower's or any such Obligor's
Organic Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or any such Obligor, where such
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contravention, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect; or
(c) result in, or require the creation or imposition of, any
Lien on any of the Borrower's or any other Obligor's properties,
except pursuant to the terms of a Loan Document.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due
execution, delivery or performance by the Borrower or any other Obligor of this
Agreement, the Notes or any other Loan Document to which it is a party, or for
the Borrower's and each such other Obligor's participation in the consummation
of the Transaction, except as have been duly obtained or made and are in full
force and effect or those which the failure to obtain or make could not
reasonably be expected to have a Material Adverse Effect. None of the Borrower
nor any other Obligor, nor any of the Borrower's Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Borrower will, on the due
execution and delivery thereof, constitute, the legal, valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms; and each Loan Document executed pursuant hereto by each other Obligor
will, on the due execution and delivery thereof by such Obligor, be the legal,
valid and binding obligation of such Obligor enforceable in accordance with its
terms, in each case with respect to this Section 6.4 subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
SECTION 6.5. Financial Information. The Borrower has
delivered to the Agents and each Lender copies of the following
financial statements:
(a) unaudited consolidated profit and loss and cash flow
statements of Rust for the fiscal years ended December 31, 1994 and
December 31, 1995; and
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(b) an audited consolidated balance sheet of Rust as of June
30, 1996.
Each of the financial statements described above has been prepared in
accordance with GAAP consistently applied (in the case of clause (a)) and, in
the case of clause (b), on a basis substantially consistent with the basis used
to prepare the financial statements referred to in clause (a), and present
fairly the consolidated financial condition of the corporations covered thereby
as at the date thereof (in the case of clause (b)) or the results of their
operations for the periods then ended (in the case of clause (a)), subject, in
the case of clause (b), to normal year end audit adjustments.
SECTION 6.6. No Material Adverse Change. Since December 31, 1995,
there has been no material adverse change in the financial condition,
operations, assets, business or properties of the Borrower and its
Subsidiaries, taken as a whole (including, for purposes of this Section 6.6,
for all periods prior to the consummation of the Acquisition and the Merger,
Rust and its Subsidiaries).
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower, threatened litigation, action,
proceeding, labor controversy arbitration or governmental investigation
affecting any Obligor, or any of their respective properties, businesses,
assets or revenues, which could reasonably be expected to result in a Material
Adverse Effect except as disclosed in Item 6.7 ("Litigation") of the Disclosure
Schedule. No material adverse development has occurred in any litigation,
action, labor controversy, arbitration or governmental investigation or other
proceeding disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Borrower has only those Subsidiaries
(i) which are identified in Item 6.8 ("Existing Subsidiaries") of the
Disclosure Schedule, or (ii) which are permitted to have been acquired in
accordance with Section 7.2.5 or 7.2.8.
SECTION 6.9. Ownership of Properties. Except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, the Borrower and each of its Subsidiaries owns good title to all of its
properties and assets (other than insignificant properties and assets), real
and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens or material claims (including material infringement claims with
respect to patents,
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trademarks, copyrights and the like), except as permitted pursuant to Section
7.2.3.
SECTION 6.10. Taxes. Each of Rust, the Borrower and each of their
respective Subsidiaries has filed all Federal, State and other material tax
returns required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or
charges which are being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set aside
on its books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement, no Pension Plan has been terminated that has resulted in a
liability to the Borrower of more than $500,000, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA in excess of $500,000. No condition exists or
event or transaction has occurred with respect to any Pension Plan which could
reasonably be expected to result in the incurrence by the Borrower of any
material liability, fine or penalty other than such condition, event or
transaction which would not reasonably be expected to have a Material Adverse
Effect. Except as disclosed in Item 6.11 ("Employee Benefit Plans") of the
Disclosure Schedule or otherwise approved by the Agents (such approval not to
be unreasonably withheld or delayed), since the date of the last financial
statement the Borrower has not increased any contingent liability with respect
to any post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA
except as would not have Material Adverse Effect.
SECTION 6.12. Environmental Warranties. Except as set forth in Item
6.12 ("Environmental Matters") of the Disclosure Schedule or as, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its
Subsidiaries have been, and continue to be, owned or leased by the
Borrower and its Subsidiaries in compliance with all Environmental
Laws;
(b) there have been no past, and there are no pending or
threatened
(i) written claims, complaints, notices or requests
for information received by the Borrower or
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any of its Subsidiaries with respect to any alleged violation
of any Environmental Law, or
(ii) written complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding potential
liability under any Environmental Law;
(c) to the best knowledge of the Borrower, there have been no
Releases of Hazardous Materials at, on or under any property now or
previously owned or leased by the Borrower or any of its Subsidiaries;
(d) the Borrower and its Subsidiaries have been issued and
are in compliance with all permits, certificates, approvals, licenses
and other authorizations relating to environmental matters and
necessary or desirable for their businesses;
(e) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or, to the knowledge of
the Borrower or any of its Subsidiaries, proposed for listing (with
respect to owned property only) on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list of
sites requiring investigation or clean-up;
(f) to the best knowledge of the Borrower, there are no
underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned or
leased by the Borrower or any of its Subsidiaries;
(g) the Borrower and its Subsidiaries have not directly
transported or directly arranged for the transportation of any
Hazardous Material to any location (i) which is listed or to the
knowledge of the Borrower or any of its Subsidiaries, proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list, or (ii) which is the subject of
federal, state or local enforcement actions or other investigations;
(h) to the best knowledge of the Borrower, there are no
polychlorinated biphenyls or friable asbestos present in a manner or
condition at any property now or previously owned or leased by the
Borrower or any Subsidiary of the Borrower; and
(i) to the best knowledge of the Borrower, no conditions
exist at, on or under any property now or previously owned or leased
by the Borrower or any of its
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Subsidiaries which, with the passage of time, or the giving of notice
or both, would give rise to liability under any Environmental Law.
SECTION 6.13. Regulations G, U and X. None of Holdco nor the Borrower
nor Rust is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Credit Extensions
will be used to acquire any equity security of a class which is registered
pursuant to Section 12 of the Securities Exchange Act of 1934 or any "margin
stock". Terms for which meanings are provided in F.R.S. Board Regulation G, U
or X or any regulations substituted therefor, as from time to time in effect,
are used in this Section with such meanings.
SECTION 6.14. Accuracy of Information. All material factual
information concerning the financial condition, operations or prospects of
Holdco, the Borrower, Rust and their respective Subsidiaries heretofore or
contemporaneously furnished by or on behalf of Holdco or the Borrower in
writing to the Agents, the Issuer, the Arrangers or any Lender for purposes of
or in connection with this Agreement or any transaction contemplated hereby or
with respect to the Transaction is, and all other such factual information
hereafter furnished by or on behalf of Holdco and the Borrower, or any of their
respective Subsidiaries to the Agents, the Issuer, the Arrangers or any Lender
will be, taken as a whole, true and accurate in every material respect on the
date as of which such information is dated or certified and such information is
not, or shall not be, taken as a whole, as the case may be, incomplete by
omitting to state any material fact necessary to make such information not
misleading.
Any term or provision of this section to the contrary notwithstanding,
insofar as any of the factual information described above includes assumptions,
estimates, projections or opinions, no representation or warranty is made
herein with respect thereto; provided, however, that to the extent any such
assumptions, estimates, projections or opinions are based on factual matters,
each of Holdco and the Borrower has reviewed such factual matters and nothing
has come to its attention in the context of such review which would lead it to
believe that such factual matters were not or are not true and correct in all
material respects or that such factual matters omit to state any material fact
necessary to make such assumptions, estimates, projections or opinions not
misleading in any material respect.
SECTION 6.15. Solvency. The Transaction (including the incurrence of
the initial Credit Extension hereunder, the issuance and assumption of the
Seller Note, the incurrence by the
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Borrower of the Indebtedness represented by the Notes and the Seller Note, the
execution and delivery by the Subsidiary Guarantors of the Subsidiary Guaranty
and the application of the proceeds of the Credit Extensions), will not involve
or result in any fraudulent transfer or fraudulent conveyance under the
provisions of Section 548 of the Bankruptcy Code (11 U.S.C. ss.101 et seq., as
from time to time hereafter amended, and any successor or similar statute) or
any applicable state law respecting fraudulent transfers or fraudulent
conveyances. On the Closing Date, after giving effect to the Transaction, each
of the Borrower, Holdco and the Subsidiary Guarantors is Solvent.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the
Agents, the Issuer and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish, or will cause to be furnished, to each Lender, the
Issuer and each Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 60 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year of the Borrower (or, if the Borrower is required to file
such information on a Form 10-Q with the Securities and Exchange
Commission, promptly following such filing), a consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such
Fiscal Quarter, together with the related consolidated statements of
profit and loss and cash flow for such Fiscal Quarter and for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter (it being understood that the
foregoing requirement may be satisfied by delivery of the Borrower's
report to the Securities and Exchange Commission on Form 10-Q),
certified by the chief financial Authorized Officer of the Borrower;
(b) as soon as available and in any event within 90 days
after the end of each Fiscal Year of the Borrower (or, if the Borrower
is required to file such information on a Form 10-K with the
Securities and Exchange Commission, promptly following such filing), a
copy of the annual audit report for such Fiscal Year for the Borrower
and its
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Subsidiaries, including therein a consolidated balance sheet for the
Borrower and its Subsidiaries as of the end of such Fiscal Year,
together with the related consolidated statements of profit and loss
and cash flow of the Borrower and its Subsidiaries for such Fiscal
Year (it being understood that the foregoing requirement may be
satisfied by delivery of the Borrower's report to the Securities and
Exchange Commission on Form 10-K, if any), in each case certified
(without any Impermissible Qualification) by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or
another "Big Six" firm of independent public accountants, together
with a certificate from such accountants to the effect that, in making
the examination necessary for the signing of such annual report by
such accountants, they have not become aware of any Default that has
occurred and is continuing, or, if they have become aware of such
Default, describing such Default and the steps, if any, being taken to
cure it;
(c) together with the delivery of the financial information
required pursuant to clauses (a) and (b), a Compliance Certificate, in
substantially the form of Exhibit E, executed by the chief financial
Authorized Officer of the Borrower, showing (in reasonable detail and
with appropriate calculations and computations in all respects
satisfactory to the Agents) compliance with the financial covenants
set forth in Section 7.2.4;
(d) as soon as possible and in any event within five Business
Days after obtaining knowledge of the occurrence of each Default, if
such Default is then continuing, a statement of the chief financial
Authorized Officer of the Borrower setting forth details of such
Default and the action which the Borrower has taken and proposes to
take with respect thereto;
(e) as soon as possible and in any event within five Business
Days after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding, or labor controversy
described in Section 6.7 and the action which the Borrower has taken
and proposes to take with respect thereto or (y) the commencement of
any labor controversy, litigation, action, proceeding of the type
described in Section 6.7, notice thereof and of the action which the
Borrower has taken and proposes to take with respect thereto;
(f) promptly after the sending or filing thereof, copies of
all reports and registration statements (other than exhibits thereto
and any registration statement on Form S-8 or its equivalent) which
the Borrower or any of its
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Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(g) as soon as practicable after the chief financial officer
or the chief executive officer of the Borrower or a member of the
Borrower's Controlled Group becomes aware of (i) formal steps in
writing to terminate any Pension Plan or (ii) the occurrence of any
event with respect to a Pension Plan which, in the case of (i) or
(ii), could reasonably be expected to result in a contribution to such
Pension Plan by (or a liability to) the Borrower or a member of the
Borrower's Controlled Group in excess of $5,000,000, (iii) the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA, (iv)
the taking of any action with respect to a Pension Plan which could
reasonably be expected to result in the requirement that the Borrower
furnish a bond to the PBGC or such Pension Plan or (v) any material
increase in the contingent liability of the Borrower with respect to
any post-retirement Welfare Plan benefit, notice thereof and copies of
all documentation relating thereto;
(h) promptly when available and in any event within 45 days
following the last day of each Fiscal Year of the Borrower, financial
projections for the current Fiscal Year, prepared in reasonable detail
by the chief accounting, financial or executive Authorized Officer of
the Borrower;
(i) within 30 days after the end of each calendar month, a
Borrowing Base Certificate that is calculated as of the last day of
such calendar month; and
(j) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender or the Issuer through the Administrative
Agent may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation, except where the
failure to so qualify could not reasonably be expected to have a
Material Adverse Effect; and
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(b) the payment, before the same become delinquent, of all
material taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent being contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. Except to the extent that
the failure to do so could not reasonably be expected to have a Material
Adverse Effect, the Borrower will, and will cause each of its Subsidiaries to,
maintain, preserve, protect and keep its properties (other than insignificant
properties) in good repair, working order and condition (ordinary wear and tear
excepted), and make necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly conducted
at all times unless the Borrower determines in good faith that the continued
maintenance of any of its properties is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses and with such provisions and
endorsements as the Agents may reasonably request and will, upon request of the
Agents, furnish to the Agents and each Lender a certificate of an Authorized
Officer of the Borrower setting forth the nature and extent of all insurance
maintained by the Borrower and its Subsidiaries in accordance with this
Section.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause
each of its Subsidiaries to, keep books and records which accurately reflect in
all material respects all of its business affairs and transactions and permit
the Agents, the Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
to visit all of its offices, to discuss its financial matters with its officers
and, after notice to the Borrower and provision of an opportunity for the
Borrower to participate in such discussion, its independent public accountant
(and the Borrower hereby authorizes such independent public accountant to
discuss the Borrower's financial matters with the Issuer and each Lender or its
representatives whether or not any representative of the Borrower is present,
so long as the Borrower has been afforded a reasonable opportunity to be
present) and to examine, and photocopy extracts from, any of its books or other
corporate records. The cost and expense of each such visit shall be borne by
the applicable Agent or Lender,
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except that each Agent may make one such visit each Fiscal Year and the cost
and expense thereof shall be borne by the Borrower.
SECTION 7.1.6. Environmental Covenant. The Borrower will
and will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith,
and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply
with the terms of this clause could not reasonably be expected to have
a Material Adverse Effect;
(b) promptly notify the Agents and provide copies of all
written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with
Environmental Laws which relate to environmental matters which would
have, or would reasonably be expected to have, a Material Adverse
Effect, and promptly cure and have dismissed with prejudice any
material actions and proceedings relating to compliance with
Environmental Laws, except to the extent being diligently contested in
good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP have been set aside on its books; and
(c) provide such information and certifications which the
Agents may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming, after
the Closing Date, a Subsidiary of the Borrower, or upon the Borrower or any
Subsidiary acquiring additional Capital Stock of any existing Subsidiary, the
Borrower shall notify the Agents of such acquisition, and
(a) the Borrower shall promptly cause such Subsidiary to
execute and deliver to the Administrative Agent, with counterparts for
each Lender, a supplement to the Subsidiary Guaranty and a supplement
to the Subsidiary Security Agreement (and, if such Subsidiary owns any
real property, a Mortgage), together with acknowledgement copies of
Uniform Commercial Code financing statements (form UCC-1) executed and
delivered by the Subsidiary naming the Subsidiary as the debtor and
the Administrative Agent as the secured party, or other similar
instruments or documents, filed under the Uniform Commercial Code and
any other applicable recording
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statutes, in the case of real property, of all jurisdictions as may be
necessary or, in the opinion of the Administrative Agent, desirable to
perfect the security interest of the Administrative Agent pursuant to
the Subsidiary Security Agreement or a Mortgage, as the case may be
(other than the perfection of security interests in motor vehicles
owned as of the date such entity becomes a Subsidiary); and
(b) the Borrower shall promptly deliver, or cause to be
delivered, to the Administrative Agent under a Pledge Agreement (or a
supplement thereto) certificates (if any) representing all of the
issued and outstanding shares of Capital Stock of such Subsidiary
owned by the Borrower or any Subsidiary of the Borrower, as the case
may be, along with undated stock powers for such certificates,
executed in blank, or, if any securities subject thereto are
uncertificated securities, confirmation and evidence satisfactory to
the Agents that appropriate book entries have been made in the
relevant books or records of a financial intermediary or the issuer of
such securities, as the case may be, or other appropriate steps shall
have been taken under applicable law resulting in the perfection of
the security interest granted in favor of the Administrative Agent
pursuant to the terms of a Pledge Agreement;
together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Agents, as the Agents may reasonably require;
provided, however, that notwithstanding the foregoing, no Non-U.S. Subsidiary
shall be required to execute and deliver a Mortgage, a supplement to the
Subsidiary Guaranty or a supplement to the Security Agreement, nor will the
Borrower or any Subsidiary of the Borrower be required to deliver in pledge
pursuant to a Pledge Agreement in excess of 65% of the total combined voting
power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote
in the event that such pledge would result in a material increase in tax or
similar liabilities for the Borrower and its Subsidiaries, on a consolidated
basis.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property. (a) Prior to entering into any
new lease of real property or renewing any existing lease of real property
following the Closing Date, the Borrower shall, and shall cause each of its
U.S. Subsidiaries to, use its (and their) best efforts (which shall not require
the expenditure of cash or the making of any material concessions under the
relevant lease) to deliver to the Administrative Agent a Waiver executed by the
lessor of any real property that is to be leased by the Borrower or such U.S.
Subsidiary for a term in excess of one year in any
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state which by statute grants such lessor a "landlord's" (or similar) Lien
which is superior to the Administrative Agent's, to the extent the value of any
personal property of the Borrower or its U.S. Subsidiaries to be held at such
leased property exceeds (or it is anticipated that the value of such personal
property will, at any point in time during the term of such leasehold term,
exceed) $5,000,000.
(b) In the event that the Borrower or any of its U.S.
Subsidiaries shall acquire any real property having a value as
determined in good faith by the Administrative Agent in excess of
$2,000,000 in the aggregate, the Borrower or the applicable U.S.
Subsidiary shall, promptly after such acquisition, execute a Mortgage
and provide the Administrative Agent with
(i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and
filings of such Mortgage as may be necessary or, in the
reasonable opinion of the Administrative Agent, desirable
effectively to create a valid, perfected first priority Lien,
subject to Liens permitted by Section 7.2.3, against the
properties purported to be covered thereby;
(ii) mortgagee's title insurance policies in favor
of the Agents and the Lenders in amounts and in form and
substance and issued by insurers, reasonably satisfactory to
the Agents, with respect to the property purported to be
covered by such Mortgage, insuring that title to such
property is marketable and that the interests created by the
Mortgage constitute valid first Liens thereon free and clear
of all defects and encumbrances other than as approved by the
Agents, and such policies shall also include a revolving
credit endorsement and such other endorsements as the Agents
shall request and shall be accompanied by evidence of the
payment in full of all premiums thereon; and
(iii) such other approvals, opinions, or documents
as the Agents may reasonably request.
(c) In accordance with the terms and provisions of the
Security Documents, provide the Agents with evidence of all recordings
and filings as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable to create a valid, perfected first
priority Lien, subject to the Liens permitted by Section 7.2.3,
against all property acquired after the Closing Date (including motor
vehicles
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but excluding leases of real property) and not otherwise subject to
Section 7.1.11.
SECTION 7.1.9. Use of Proceeds, etc. The Borrower shall
(a) apply the proceeds of the Loans
(i) in the case of Term Loans, to pay in part (or
cause its Subsidiaries to pay in part) the cash portion of
the merger consideration to be paid to the Seller in
connection with the Merger (or the cash portion of the merger
consideration to be paid to the Seller in connection with the
Sub One Merger and the Sub Two Merger (in each case as
defined in the Transaction Agreement));
(ii) for working capital and general corporate
purposes of the Borrower and its Subsidiaries; and
(iii) in the case of Term Loans, to pay the
transaction costs and expenses of the Transaction (provided,
that the aggregate amount of such costs and expenses shall
not exceed $13,000,000);
(b) apply all the proceeds from the cash component of the
Equity Issuance and Contribution and the Preferred Stock Sale to
(i) pay in part (or cause its Subsidiaries to pay in
part) the cash portion of the merger consideration to be paid
to the Seller in connection with the Merger (or the cash
portion of the merger consideration to be paid to the Seller
in connection with the Sub One Merger and the Sub Two Merger
(in each case as defined in the Transaction Agreement)); and
(ii) pay the transaction costs and expenses of the
Transaction (provided, that the aggregate amount of such
costs and expenses shall not exceed $13,000,000); and
(c) use Letters of Credit only for purposes of supporting
working capital and general corporate purposes of the Borrower and its
Subsidiaries (including, without limitation, insurance, workers'
compensation, performance and surety bonds and the purchase of
inventory and equipment).
SECTION 7.1.10. Hedging Obligations. Within six months following the
Closing Date, the Administrative Agent shall have
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received evidence satisfactory to it that the Borrower has entered into
interest rate swap, cap, collar or similar arrangements designed to protect the
Borrower against fluctuations in interest rates with respect to at least 50% of
the aggregate principal amount of the Term Loans with terms reasonably
satisfactory to the Borrower and the Agents.
SECTION 7.1.11. Borrower Pledge Agreement. The Borrower covenants and
agrees that, in its capacity as a Pledged Share Issuer under (and as defined
in) the Holdco Pledge Agreement, it will cooperate in all reasonable respects
necessary to enable the Administrative Agent to exercise its rights and
remedies under the terms of the Holdco Pledge Agreement.
SECTION 7.1.12. Mortgages. Within 30 days after the Closing Date, the
Borrower shall deliver to the Agents counterparts of each Mortgage relating to
each property listed on Item 7.1.12 ("Mortgaged Properties") of the Disclosure
Schedule, each dated as of the date of such delivery, duly executed by the
Borrower or the applicable U.S. Subsidiary, together with
(a) evidence of the completion (or satisfactory arrangements
for the completion) of all recordings and filings of such Mortgage as
may be necessary or, in the reasonable opinion of the Administrative
Agent, desirable effectively to create a valid, perfected first
priority Lien against the properties purported to be covered thereby;
(b) mortgagee's title insurance policies in favor of the
Agents and the Lenders in amounts and in form and substance and issued
by insurers, reasonably satisfactory to the Agents, with respect to
the property purported to be covered by such Mortgage, insuring that
title to such property is marketable and that the interests created by
the Mortgage constitute valid first Liens thereon free and clear of
all defects and encumbrances other than as approved by the Agents, and
such policies shall also include a revolving credit endorsement and
such other endorsements as the Administrative Agent shall request and
shall be accompanied by evidence of the payment in full of all
premiums thereon; and
(c) such other approvals, opinions, or documents as the
Agents may reasonably request.
SECTION 7.1.13. Post Closing Items. The Borrower covenants
and agrees to complete and satisfy the following items:
(a) Audited Statements. Within 45 days after the Closing
Date, the Borrower shall have delivered to the
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Agents, with a copy for each Lender, audited consolidated profit and
loss and cash flow statements of Rust and its Subsidiaries for the
fiscal years ended December 31, 1994 and December 31, 1995, in each
case together with an audit report that does not contain an
Impermissible Qualification from the independent public accountants
that shall have audited such financial statements.
(b) Solvency Opinion. Within 14 days after the Closing Date,
the Borrower shall have delivered to the Agents, with a copy for each
Lender, a solvency opinion of Houlihan, Lokey, ▇▇▇▇▇▇ & ▇▇▇▇▇, dated
as of such date of delivery, in form and substance satisfactory to the
Agents.
(c) Additional Opinions. Within 30 days following the Closing
Date, the Borrower shall have delivered to the Agents, with a copy for
each Lender, in form and substance satisfactory to the Agents and to
the extent requested by the Agents, letters of opinion from local
counsel of any states wherein Collateral with a book value in excess
of $3,000,000 is situated with respect to the perfection of the
security interests therein created under the Loan Documents.
SECTION 7.2. Negative Covenants. The Borrower agrees with the Agents,
the Issuer and each Lender that, until all Commitments have terminated, all
Letters of Credit have terminated or expired and all Obligations have been paid
and performed in full, the Borrower will perform the obligations set forth in
this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any business activity, except
business activities of the type in which the Borrower and its Subsidiaries are
engaged on the date hereof (after giving effect to the Acquisition) and such
activities as may be incidental, similar or related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions
and other Obligations;
(b) Indebtedness incurred by the Borrower or any of its
Subsidiaries (i) owing to any Person providing financing for the
acquisition of any assets permitted to be acquired pursuant to Section
7.2.7 to finance its acquisition of such assets, (ii) in respect of
Capitalized Lease Liabilities
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(but only to the extent otherwise permitted by Section 7.2.7) and
(iii) from time to time for general corporate purposes; provided, that
the maximum aggregate amount of all Indebtedness permitted under this
clause (b) shall not at any time exceed $5,000,000;
(c) Hedging Obligations of the Borrower or any of its
Subsidiaries in respect of the Loans;
(d) intercompany Indebtedness of (x) any Subsidiary of the
Borrower owing to the Borrower or any of its Subsidiaries or (y) the
Borrower to any of its Subsidiaries, which Indebtedness
(i) shall be evidenced by one or more promissory
notes in form and substance satisfactory to the Agents which
(except in the case of any such notes held by a Non-U.S.
Subsidiary) have been duly executed and delivered to (and
endorsed to the order of) the Administrative Agent in pledge
pursuant to a Pledge Agreement; and
(ii) shall not be forgiven or otherwise discharged
for any consideration other than payment (Dollar for Dollar)
in cash unless the Agents otherwise consent;
provided, however, that no Indebtedness otherwise permitted by clause (b) or
(d) (as such clause (d) relates to loans made by the Borrower to Subsidiaries
which are not party to the Subsidiary Guaranty) may be incurred if, after
giving effect to the incurrence thereof, any Default shall have occurred and be
continuing, and provided, further, however, that all such Indebtedness of the
type described in clause (d)(y) above that are owed to Subsidiaries which are
not party to the Subsidiary Guaranty, shall be subordinated, in writing, to the
Obligations upon terms satisfactory to the Agents.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens securing payment of the Obligations or any Hedging
Obligations owed to any Lender or any Affiliate of any Lender, granted
pursuant to any Loan Document;
(b) Liens granted to secure payment of Indebtedness of the
type permitted and described in clause (b) of Section 7.2.2;
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(c) Liens for taxes, assessments or other governmental
charges or levies, including Liens pursuant to Section 107(l) of
CERCLA or other similar law, not at the time delinquent or thereafter
payable without penalty or being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(d) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen and landlords or other like liens incurred in the ordinary
course of business for sums not overdue for a period of more than 30
days or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(e) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, insurance obligations,
leases and contracts (other than for borrowed money) entered into in
the ordinary course of business or to secure obligations on surety or
appeal bonds;
(f) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or
the payment of which is covered in full by a bond or (subject to a
customary deductible) by insurance maintained with responsible
insurance companies;
(g) Liens with respect to recorded minor imperfections of
title and easements, rights-of-way, restrictions, reservations,
permits, servitudes and other similar encumbrances on real property
and fixtures which do not materially detract from the value or
materially impair the use by the Borrower or any such Subsidiary in
the ordinary course of their business of the property subject thereto;
(h) leases or subleases granted by the Borrower or any of its
Subsidiaries to any other Person in the ordinary course of business;
and
(i) Liens in the nature of trustees' Liens granted pursuant
to any indenture governing any Indebtedness permitted by Section
7.2.2, in each case in favor of the trustee under such indenture and
securing only obligations to pay compensation to such trustee, to
reimburse its expenses and to indemnify it under the terms thereof.
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SECTION 7.2.4. Financial Condition.
(a) Net Worth. The Borrower will not permit, as of any date
of determination, Net Worth to be less than an aggregate amount equal
to (i) $50,000,000 minus (ii) the discount applied to the Seller Note
to record it on Holdco's balance sheet at fair market value as of the
Closing Date in an aggregate amount not to exceed $10,500,000 minus
(iii) the reduction to the Borrower's Net Worth on its opening balance
sheet arising from the deemed dividend to the Seller reflecting the
Seller's continuing ownership interest in an aggregate amount not to
exceed $15,000,000 plus (iv) an amount equal to 50% of cumulative
positive Net Income from the Closing Date to the end of the Fiscal
Quarter most recently ended on or prior to such date of determination.
(b) Leverage Ratio. The Borrower will not permit the Leverage
Ratio as of the end of any Fiscal Quarter occurring during any period
set forth below to be greater than the ratio set forth opposite such
period:
Period Leverage Ratio
------ --------------
10/01/96 to 9/30/97 4.75:1
10/01/97 to 9/30/98 4.60:1
10/01/98 to 9/30/99 4.00:1
10/01/99 to 9/30/00 3.50:1
10/01/00 to 9/30/01 3.00:1
10/01/01 to 9/30/02 2.50:1
10/01/02 and thereafter 2.00:1
(c) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter occurring
during any period set forth below to be less than the ratio set forth
opposite such period:
Interest Coverage
Period Ratio
------------ ------------------
10/01/96 to 9/30/97 2.25:1
10/01/97 to 9/30/98 2.25:1
10/01/98 to 9/30/99 2.50:1
10/01/99 to 9/30/00 2.75:1
10/01/00 to 9/30/01 3.25:1
10/01/01 to 9/30/02 3.75:1
10/01/02 to 9/30/03 4.25:1
10/01/03 and thereafter 4.50:1
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(d) Fixed Charge Coverage Ratio. The Borrower will not permit
the Fixed Charge Coverage Ratio as of the end of any Fiscal Quarter
occurring during any period set forth below to be less than the ratio
set forth opposite such period:
Fixed Charge
Period Coverage Ratio
-------- -----------------
10/01/96 to 9/30/97 1.10:1
10/01/97 to 9/30/98 1.15:1
10/01/98 to 9/30/99 1.20:1
10/01/99 to 9/30/00 1.25:1
10/01/00 and thereafter 1.30:1
SECTION 7.2.5. Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Closing Date and identified
in Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as
Indebtedness pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7;
(e) Investments by the Borrower in any of its Subsidiaries,
or by any such Subsidiary in any of its Subsidiaries, by way of
contributions to capital;
(f) Investments made by the Borrower or any of its
Subsidiaries, solely with proceeds which have been contributed,
directly or indirectly, to the Borrower or such Subsidiary as cash
equity from holders of the Borrower's common stock for the purpose of
making an Investment identified in a notice to the Agents on or prior
to the date that such capital contribution is made, which Investments
shall result in the Borrower or such Subsidiary acquiring a majority
controlling interest in the Person in which such Investment was made
or increasing any such controlling interest already maintained by it;
(g) Investments to the extent the consideration received
pursuant to clause (b)(i) of Section 7.2.9 is not all cash;
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(h) Investments in the form of loans to officers, directors
and employees of the Borrower and its Subsidiaries for the sole
purpose of purchasing Holdco common stock in an aggregate amount at
any time outstanding not to exceed $2,000,000;
(i) other Investments made by the Borrower or any of its
Subsidiaries in an aggregate amount not to exceed $5,000,000, which
Investments shall result in the Borrower or the relevant Subsidiary
acquiring (subject to Section 7.2.1) a majority controlling interest
in the Person in which such Investment was made or increasing any such
controlling interest maintained by it in such Person; or
(j) Investments made by the Borrower in Holdco on the Closing
Date to the extent necessary to consummate the transactions described
in the recitals hereto;
provided, however, that
(k) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements;
(l) no Investment otherwise permitted by clause (c) (except
to the extent permitted under Section 7.2.2), (e), (f), (h) or (i)
shall be permitted to be made if, immediately before or after giving
effect thereto, any Default shall have occurred and be continuing.
SECTION 7.2.6. Restricted Payments, etc. On and at all
times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend,
distribution or exchange (in cash, property or obligations) on or in
respect of any shares of any class of Capital Stock (now or hereafter
outstanding) of the Borrower or on any warrants, options or other
rights with respect to any shares of any class of Capital Stock (now
or hereafter outstanding) of the Borrower (other than dividends or
distributions payable in its common stock or warrants to purchase its
common stock or splits or reclassifications of its stock into
additional or other shares of its common stock) or apply, or permit
any of its Subsidiaries to apply, any of its funds, property or assets
to the purchase, redemption, exchange, sinking fund or other
retirement of, or agree or permit any of its Subsidiaries to purchase,
redeem or exchange, any shares of any class of Capital Stock
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(now or hereafter outstanding) of the Borrower, warrants, options or
other rights with respect to any shares of any class of Capital Stock
(now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in
cash, property or obligations) any obligation arising under or in
respect of the Seller Note and will not apply or permit any of its
Subsidiaries to apply any of its funds, property or assets to the
purchase, redemption, exchange, sinking fund or other retirement of
the Seller Note; and
(c) the Borrower will not, and will not permit any of its
Subsidiaries to, make any deposit for any of the foregoing purposes
(the foregoing prohibited acts referred to in clauses (a), (b) or (c)
above are herein collectively referred to as "Restricted Payments");
provided, however, that,
(d) notwithstanding the provisions of clause (a) above, the
Borrower shall be permitted to make Restricted Payments to Holdco to
the extent necessary to enable Holdco to (i) pay its overhead expenses
in an amount not to exceed $250,000 in the aggregate in any Fiscal
Year, (ii) pay its taxes and (iii) so long as (A) no Default shall
have occurred and be continuing on the date such Restricted Payment is
declared or to be made, nor would a Default result from the making of
such Restricted Payment, (B) after giving effect to the making of such
Restricted Payment the Borrower shall be in pro forma compliance with
the covenants set forth in Section 7.2.4 for the most recent full
Fiscal Quarter immediately preceding the date of the payment of such
Restricted Payment for which the relevant financial information has
been delivered pursuant to clause (a) or clause (b) of Section 7.1.1,
and (C) an Authorized Officer of the Borrower shall have delivered a
certificate to the Agents in form and substance satisfactory to the
Agents (including a calculation of the compliance with the covenants
set forth in Section 7.2.4) certifying as to the accuracy of clauses
(d)(iii)(A) and (d)(iii)(B) above, purchase, redeem, acquire or
otherwise retire for value shares of Capital Stock of Holdco or
Preferred Stock of the Borrower held by directors, officers or
employees of Holdco or the Borrower or any of its Subsidiaries, or
options on any such shares or related stock appreciation rights or
similar securities owned by such directors, officers or employees (or
their estates of beneficiaries under their estates), in all cases only
upon death, disability, retirement, termination of employment or
pursuant to
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the terms of such stock option plan or any other agreement under which
such shares of Capital Stock, options, related rights or similar
securities were issued (collectively referred to as a "Redemption") or
to pay principal of, or interest on, notes issued by Holdco as
permitted under Section 5.9(d) of the Holdco Pledge Agreement, in an
aggregate amount, in the case of this clause (d)(iii), not to exceed
$1,000,000 in any Fiscal Year; provided, that the Borrower can carry
forward to each succeeding Fiscal Year the aggregate amount of
Restricted Payments permitted (but not made) pursuant to this clause
(d)(iii) in prior Fiscal Years, with up to a maximum amount of
$3,000,000 over the term of this Agreement of the sum of (I)
Restricted Payments permitted to be made pursuant to this clause
(d)(iii) and (II) the outstanding face amount of notes and other
consideration issued by Holdco pursuant to Section 5.9(d) of the
Holdco Pledge Agreement;
(e) notwithstanding the provisions of clause (a) above, the
Borrower shall be permitted to make Restricted Payments to Holdco to
the extent necessary to enable Holdco to (i) pay from and after
January 1, 2000, accrued and scheduled interest which is due and
payable under the Seller Note and (ii) pay from and after January 1,
2002, principal which is due and payable under Section 2 of the Seller
Note, so long as in each case (A) no Default shall have occurred and
be continuing on the date such Restricted Payment is declared or to be
made, nor would a Default result from (or reasonably be expected to
result from) the making of such Restricted Payment, (B) after giving
effect to the making of such Restricted Payment the Borrower shall be
in pro forma compliance with the covenants set forth in Section 7.2.4
for the most recent full Fiscal Quarter immediately preceding the date
of the payment of such Restricted Payment for which the relevant
financial information has been delivered pursuant to clause (a) or
clause (b) of Section 7.1.1, (C) after giving effect to the making of
such Restricted Payment, the Leverage Ratio on such pro forma basis is
no greater than 2:1 for each of the two most recent Fiscal Quarters
immediately preceding the date of payment of such Restricted Payment,
and (D) an Authorized Officer of the Borrower shall have delivered a
certificate to the Agents in form and substance satisfactory to the
Agents (including a calculation of the compliance with the covenants
set forth in Section 7.2.4) certifying as to the accuracy of clauses
(e)(A), (e)(B) and (e)(C) above; and
(f) the Borrower shall be permitted to make Restricted
Payments on the Closing Date of the type required to effect the
transactions described in the recitals hereto.
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SECTION 7.2.7. Capital Expenditures, etc. With respect to
Capital Expenditures, the parties covenant and agree as follows:
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, make or commit to make Capital Expenditures in any
Fiscal Year, except Capital Expenditures which do not aggregate in
excess of $10,000,000 in such Fiscal Year; provided, however, that to
the extent the amount of Capital Expenditures permitted to be made in
any Fiscal Year pursuant to this Section exceeds the aggregate amount
of Capital Expenditures actually made during such Fiscal year, such
excess amount up to $5,000,000 may be carried forward to (but only to)
the next succeeding Fiscal Year (any such amount to be certified by
the Borrower to the Agents in the Compliance Certificate delivered for
the last Fiscal Quarter of such Fiscal Year, and any such amount
carried forward to a succeeding Fiscal Year shall be deemed to be used
prior to the Borrower and its Subsidiaries using the amount of Capital
Expenditures permitted by this Section without giving effect to such
carry-forward).
(b) The parties acknowledge and agree that the permitted
Capital Expenditure level set forth in clause (a) above shall be
exclusive of the amount of Capital Expenditures actually made with
cash capital contributions (other than capital contributions made by
the Borrower in any of its Subsidiaries or by any Subsidiary of the
Borrower in another Subsidiary of the Borrower, except to the extent
the source thereof is a capital contribution from Holdco) after the
Closing Date to the Borrower or any of its Subsidiaries and
specifically identified in a certificate delivered by an Authorized
Officer of the Borrower to the Agents on or about the time such
capital contribution is made.
SECTION 7.2.8. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other corporation, or purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any
division thereof) except
(a) any such Subsidiary may liquidate or dissolve voluntarily
into, and may merge with and into, the Borrower (so long as the
Borrower is the surviving corporation of such combination or merger)
or any other Subsidiary, and the assets or stock of any Subsidiary may
be purchased or otherwise acquired by the Borrower or any other
Subsidiary; provided, that notwithstanding the above, a Subsidiary may
only liquidate or dissolve into, or merge with and into,
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another Subsidiary of the Borrower if, after giving effect to such
combination or merger, the Borrower continues to own (directly or
indirectly), and the Administrative Agent continues to have pledged to
it pursuant to a Pledge Agreement, a percentage of the issued and
outstanding shares of Capital Stock (on a fully diluted basis) of the
Subsidiary surviving such combination or merger that is equal to or in
excess of the percentage of the issued and outstanding shares of
Capital Stock (on a fully diluted basis) of the Subsidiary that does
not survive such combination or merger that was (immediately prior to
the combination or merger) owned by the Borrower or pledged to the
Administrative Agent;
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Subsidiaries may purchase all or substantially all of the assets of
any Person (or any division thereof) not then a Subsidiary, or acquire
such Person by merger, if permitted (without duplication) pursuant to
Section 7.2.7 or clauses (f) or (i) of Section 7.2.5; and
(c) the Borrower and its Subsidiaries may consummate the
Merger, the Sub One Merger (as defined in the Transaction Agreement),
the Sub Two Merger (as so defined) and the other transactions
contemplated in the Transaction Agreement.
SECTION 7.2.9. Asset Dispositions, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, transfer, lease, contribute
or otherwise convey, or grant options, warrants or other rights with respect
to, all or any part of its assets, whether now owned or hereafter acquired
(including accounts receivable and Capital Stock of Subsidiaries) to any
Person, unless
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does
not constitute a sale, transfer, lease, contribution or other
conveyance of all or a substantial part of the Borrower's and its
Subsidiaries' assets, taken as a whole) or is of obsolete or worn out
property, (ii) permitted by Section 7.2.8, or (iii) between the
Borrower and one of its Subsidiaries or between Subsidiaries of the
Borrower; or
(b) (i) such sale, transfer, lease, contribution or
conveyance of such assets is for fair market value and the
consideration consists of no less than 80% in cash, (ii) the
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Net Disposition Proceeds received from such assets, together with the
Net Disposition Proceeds of all other assets sold, transferred,
leased, contributed or conveyed pursuant to this clause (b) since the
Closing Date, does not exceed (individually or in the aggregate)
$15,000,000 over the term of this Agreement and (iii) an amount equal
to the Net Disposition Proceeds generated from such sale, transfer,
lease, contribution or conveyance is applied to prepay the Loans
pursuant to the terms of Section 3.1.1 and Section 3.1.2.
SECTION 7.2.10. Modification of Certain Agreements. Without the prior
written consent of the Required Lenders, the Borrower will not, and will not
permit any of its Subsidiaries to, consent to any amendment, supplement,
amendment and restatement, waiver or other modification of any of the terms or
provisions contained in, or applicable to, the Preferred Stock (or any charter
provisions relating thereto) or any Material Document or any schedules,
exhibits or agreements related thereto, in each case which would adversely
affect the rights or remedies of the Lenders, or the Borrower's or any
Subsidiary's ability to perform hereunder or under any Loan Document or which
would increase the purchase price with respect to the Acquisition or, in the
case of the Transaction Agreement, which would increase the Borrower's or any
of its Subsidiaries' obligations or liabilities, contingent or otherwise (other
than adjustments to the purchase price made pursuant to the terms of the
Transaction Agreement).
SECTION 7.2.11. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
(other than any Obligor or any other Subsidiary of the Borrower) unless such
arrangement or contract is fair and equitable to the Borrower or such
Subsidiary and is an arrangement or contract of the kind which would be entered
into by a prudent Person in the position of the Borrower or such Subsidiary
with a Person which is not one of its Affiliates; provided, however that the
Borrower and its Subsidiaries shall be permitted to enter into and perform
their obligations under the Material Documents to which each is a party as of
the Closing Date and arrangements with DLJ and its Affiliates for underwriting,
investment banking and advisory services on usual and customary terms.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements,
etc. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any agreement prohibiting
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(a) the (i) creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired (other than, in the case of any assets acquired with the
proceeds of any Indebtedness permitted under Section 7.2.2(b)(i) or
subject to a Capitalized Lease permitted under Section 7.2.2(b)(ii),
customary limitations and prohibitions contained in such Indebtedness
or Capitalized Lease), or (ii) ability of the Borrower or any other
Obligor to amend or otherwise modify this Agreement or any other Loan
Document; or
(b) any Subsidiary from making any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments
of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
SECTION 7.2.13. Stock of Subsidiaries. The Borrower will not permit
any Subsidiary to issue any Capital Stock (whether for value or otherwise) to
any Person other than the Borrower or another wholly-owned Subsidiary of the
Borrower.
SECTION 7.2.14. Sale and Leaseback. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any agreement or arrangement
with any other Person providing for the leasing by the Borrower or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Borrower or any of its Subsidiaries to such other Person
or to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of the Borrower
or any of its Subsidiaries.
SECTION 7.2.15. Consummation of Merger. No later than one Business Day
following the date of the initial Credit Extension, the Merger shall have been
consummated in accordance with Section 251 of the Delaware General Corporation
Law, and the Administrative Agent shall have received evidence satisfactory to
it that the Certificate of Merger has been presented for filing with the
Secretary of State of the State of Delaware.
ARTICLE VIII
EVENTS OF DEFAULT
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SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) The Borrower shall
default in the payment or prepayment of any principal of any Loan when due, or
(b) any Obligor (including the Borrower) shall default (and such default shall
continue unremedied for a period of three Business Days) in the payment when
due of any interest or commitment fee with respect to the Loans or Commitments
or of any other monetary Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
the Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate
(including the Closing Date Certificate) furnished by or on behalf of the
Borrower or any other Obligor to the Agents, the Issuer, the Arrangers or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article
V) is or shall be incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of any of its
obligations under Sections 7.1.9, 7.1.10, 7.1.12, 7.1.13 or 7.2 (other than
Section 7.2.1).
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent at
the direction of the Required Lenders.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur
(i) in the payment when due (subject to any applicable grace period), whether
by acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 8.1.1, of the Borrower or any of its Subsidiaries or
Holdco having a principal amount, individually or in the aggregate, in excess
of $1,000,000, or (ii) a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness having a
principal amount, individually or in the aggregate, in excess of $1,000,000 if
the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such Indebtedness,
or any trustee or agent for such
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holders, to cause such Indebtedness to become due and payable prior to its
expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $500,000 (not covered by insurance from a responsible
insurance company that is not denying its liability with respect thereto) shall
be rendered against the Borrower or any of its Subsidiaries or Holdco and
remain unpaid and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events
shall occur with respect to any Pension Plan
(a) the termination of any Pension Plan if, as a result of
such termination, the Borrower would be required to make a
contribution to such Pension Plan, or would reasonably expect to incur
a liability or obligation to such Pension Plan, in excess of
$2,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA
in an amount in excess of $2,000,000.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower
or any of its Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for the
Borrower or any of its Subsidiaries or any other Obligor or any
property of any thereof, or make a general assignment for the benefit
of creditors;
(c) in the absence of such application, consent, acquiescence
or assignment, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other
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custodian for the Borrower or any of its Subsidiaries or any other
Obligor or for a substantial part of the property of any thereof, and
such trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days, provided that the Borrower, each Subsidiary
and each other Obligor hereby expressly authorizes the Agents, the
Issuer and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or
any of its Subsidiaries or any other Obligor, and, if any such case or
proceeding is not commenced by the Borrower or such Subsidiary or such
other Obligor, such case or proceeding shall be consented to or
acquiesced in by the Borrower or such Subsidiary or such other Obligor
or shall result in the entry of an order for relief or shall remain
for 60 days undismissed, provided that the Borrower, each Subsidiary
and each other Obligor hereby expressly authorizes the Agents, the
Issuer and each Lender to appear in any court conducting any such case
or proceeding during such 60-day period to preserve, protect and
defend their rights under the Loan Documents; or
(e) take any action (corporate or otherwise) authorizing, or
in furtherance of, any of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
the Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof;
or any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by the Loan Documents, except to the extent any event referred to
above (a) relates to assets of the Borrower or any of its Subsidiaries which
are immaterial, (b) results from the failure of the Administrative Agent to
maintain possession of certificates representing securities pledged under any
Pledge Agreement or to file continuation statements under the Uniform
Commercial Code of any applicable jurisdiction or (c) is covered by a lender's
title insurance policy and the relevant insurer promptly after the occurrence
thereof shall have acknowledged in writing that the same is covered by such
title insurance policy.
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SECTION 8.1.11. Seller Note Redemption. Any event shall occur which,
under the terms of the Seller Note, shall require Holdco, the Borrower or any
of its Subsidiaries to purchase, redeem or otherwise acquire or offer to
purchase, redeem or otherwise acquire all or any portion of the principal
amount of the Seller Note (other than payments of principal permitted under
clause (e)(ii) of Section 7.2.6); or Holdco, the Borrower or any of its
Subsidiaries shall for any other reason purchase, redeem or otherwise acquire
or offer to purchase, redeem or otherwise acquire, or make any other payments
in respect of the principal amount of the Seller Note (other than payments of
principal permitted under clause (e)(ii) of Section 7.2.6).
SECTION 8.2. Action if Bankruptcy, etc. If any Event of Default
described in clauses (b), (c) and (d) of Section 8.1.9 shall occur with respect
to any Obligor (other than immaterial Subsidiaries) the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than an Event of Default described in clauses (b), (c) and (d) of
Section 8.1.9 with respect to any Obligor (other than immaterial Subsidiaries))
shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable, require the Borrower to provide cash collateral to be deposited with
the Administrative Agent in an amount equal to the undrawn amount of all
Letters of Credit outstanding and/or declare the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment, the Borrower shall deposit with the Administrative Agent cash
collateral in an amount equal to the undrawn amount of all Letters of Credit
outstanding and/or, as the case may be, the Commitments shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its
Syndication Agent and BofA as its Administrative Agent under
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and for purposes of this Agreement, the Notes and each other Loan Document.
Each Lender authorizes the Agents to act on behalf of such Lender under this
Agreement, the Notes and each other Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time by
the Agents (with respect to which each of the Agents agrees that it will
comply, except as otherwise provided in this Section or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Agents by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto. Each Lender
hereby indemnifies (which indemnity shall survive any termination of this
Agreement) the Agents, ratably in accordance with their respective Term Loans
outstanding and Commitments (or, if no Term Loans or Commitments are at the
time outstanding and in effect, then ratably in accordance with the principal
amount of Term Loans held by such Lender, and their respective Commitments as
in effect in each case on the date of the termination of this Agreement), from
and against any and all liabilities, obligations, losses, damages, claims,
costs or expenses of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against, either of the Agents in any way
relating to or arising out of this Agreement, the Notes and any other Loan
Document, including reasonable attorneys' fees, and as to which any Agent is
not reimbursed by the Borrower or any other Obligor (and without limiting the
obligation of the Borrower or any other Obligor to do so); provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted solely from such Agent's gross negligence or willful misconduct. The
Agents shall not be required to take any action hereunder, under the Notes or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement, the Notes or any other Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of either of the
Agents shall be or become, in such Agent's determination, inadequate, the Agent
may call for additional indemnification from the Lenders and cease to do the
acts indemnified against hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent
and, in reliance upon such
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assumption, make available to the Borrower a corresponding amount. If and to
the extent that such Lender shall not have made such amount available to the
Administrative Agent, such Lender severally agrees and the Borrower agrees to
repay the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the Administrative
Agent made such amount available to the Borrower to the date such amount is
repaid to the Administrative Agent, at the interest rate applicable at the time
to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. None of the Agents or any Arranger or the
Issuer nor any of their respective directors, officers, employees or agents
shall be liable to any Lender for any action taken or omitted to be taken by it
under this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own willful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or under any other Loan Document. Any such inquiry
which may be made by any Agent or the Issuer shall not obligate it to make any
further inquiry or to take any action. The Agents and the Issuer shall be
entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Agents or the
Issuer, as applicable, believe to be genuine and to have been presented by a
proper Person.
SECTION 9.4. Successor. The Syndication Agent may resign as such upon
one Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days'
prior notice to the Borrower and all Lenders. If the Administrative Agent at
any time shall resign, the Required Lenders may, with the prior consent of the
Borrower (which consent shall not be unreasonably withheld), appoint another
Lender as a successor Administrative Agent which shall thereupon become the
Administrative Agent hereunder. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be one of
the Lenders or a commercial banking institution organized under
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the laws of the U.S. (or any State thereof) or a U.S. branch or agency of a
commercial banking institution, and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to
its benefit.
SECTION 9.5. Credit Extensions by each Agent. Each Agent and the
Issuer shall have the same rights and powers with respect to (x) (i) in the
case of the Agents, the Credit Extensions made by it or any of its Affiliates
and (ii) in the case of the Issuer, the Loans made by it or any of its
Affiliates, and (y) the Notes held by it or any of its Affiliates as any other
Lender and may exercise the same as if it were not an Agent or the Issuer. Each
Agent, the Issuer and each of their respective Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Borrower or any Subsidiary or Affiliate of the Borrower as if such Agent or
Issuer were not an Agent or Issuer hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent, each Arranger, the Issuer and each other Lender,
and based on such Lender's review of the financial information of the Borrower,
this Agreement, the other Loan Documents (the terms and provisions of which
being satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it will,
independently of each Agent, each Arranger, the Issuer and each other Lender,
and based on such other documents, information and investigations as it shall
deem appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
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SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for such Lender's account and copies of all other communications
received by the Administrative Agent from the Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of this
Agreement.
SECTION 9.8. The Syndication Agent, the Administrative Agent and the
Issuer. Notwithstanding anything else to the contrary contained in this
Agreement or any other Loan Document, the Syndication Agent, the Administrative
Agent and the Issuer, each in such capacity, shall have no duties or
responsibilities under this Agreement or any other Loan Document nor any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Syndication Agent, the Administrative
Agent or the Issuer, as applicable, in such capacity except as are explicitly
set forth herein or in the other Loan Documents.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and each Obligor party thereto and by the Required
Lenders; provided, however, that no such amendment, modification or waiver
which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 10.1, or clause (a) of Section 10.10,
change the definition of "Required Lenders", increase any Commitment
Amount or the Percentage of any Lender, reduce any fees described in
Article III, release any material Subsidiary Guarantor from its
obligations under the Subsidiary Guaranty or all or substantially all
of the collateral security (except in each case as otherwise
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specifically provided in this Agreement, the Subsidiary Guaranty, a
Security Agreement or a Pledge Agreement) or extend any Commitment
Termination Date shall be made without the consent of each Lender
adversely affected thereby;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment of principal of or interest on or fees payable in
respect of any Loan (or reduce the principal amount of or rate of
interest on or fees payable in respect of any Loan) or any
Reimbursement Obligation (which shall in each case include the
conversion of all or any part of the Obligations into equity of any
Obligor) shall be made without the consent of the holder of the Note
evidencing such Loan or, in the case of a Reimbursement Obligation,
the Issuer owed, and those Lenders participating in, such
Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of
any Agent, Issuer or Arranger (in its capacity as Agent, Issuer or
Arranger), unless consented to by such Agent, Issuer or Arranger, as
the case may be;
(e) (i) change the definition of "Borrowing Base Amount" ,
"Eligible Account" or "Net Asset Value" (in each case if the effect of
such change would be to require a Lender to make or participate in a
Credit Extension in an amount that is greater than such Lender would
have had to make or participate in immediately prior to such change)
or (ii) have the effect (either immediately or at some later time) of
enabling the Borrower to satisfy a condition precedent to the making
of a Revolving Loan or the issuance of a Letter of Credit without the
consent of Lenders holding at least 51% of the Revolving Loan
Commitments; or
(f) modify clause (a)(i) of Section 3.1.1 or clause (b) of
Section 3.1.2 without the consent of the holders of the Notes
evidencing at least 51% of the aggregate amount of Loans outstanding
under the Tranche or Tranches affected by such modification, or, in
the case of a modification affecting the Revolving Loan Commitment
Amount, the Lenders holding at least 51% of the Revolving Loan
Commitments.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or
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approval by any Agent, the Issuer, any Lender or the holder of any Note under
this Agreement or any other Loan Document shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party
at its address or facsimile number set forth on Schedule II hereto or, in the
case of a Lender that becomes a party hereto after the date hereof, as set
forth in the Lender Assignment Agreement pursuant to which such Lender becomes
a Lender hereunder or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted
(telephonic confirmation in the case of facsimile).
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to
pay on demand all reasonable expenses of each of the Agents (including the
reasonable fees and out-of-pocket expenses of counsel to the Agents and of
local counsel, if any, who may be retained by counsel to the Agents) in
connection with
(a) the syndication by the Syndication Agent and the
Arrangers of the Loans, the negotiation, preparation, execution and
delivery of this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any other Loan
Document as may from time to time hereafter be required, whether or
not the transactions contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each
Mortgage, each Pledge Agreement and each Security Agreement and/or any
Uniform Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any and
all other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or of
such Mortgage, Pledge Agreement or Security Agreement; and
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(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Agents, the Issuer and the
Lenders harmless from all liability for, any stamp or other similar taxes which
may be payable in connection with the execution or delivery of this Agreement,
the Credit Extensions made hereunder, or the issuance of the Notes or Letters
of Credit or any other Loan Documents. The Borrower also agrees to reimburse
each Agent, the Issuer and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal
expenses) incurred by such Agent, the Issuer or such Lender in connection with
(x) the negotiation of any restructuring or "work-out", whether or not
consummated, of any Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby, to the fullest extent permitted under applicable law,
indemnifies, exonerates and holds each Agent, the Issuer, each Arranger and
each Lender and each of their respective Affiliates, and each of their
respective partners, officers, directors, employees and agents, and each other
Person controlling any of the foregoing within the meaning of either Section 15
of the Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended (collectively, the "Indemnified Parties"),
free and harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages, and expenses actually incurred
in connection therewith (irrespective of whether any such Indemnified Party is
a party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (excluding
any successful action brought by or on behalf of the Borrower as the
result of any failure by any Lender or the Issuer to make any Credit
Extension hereunder);
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(c) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not such Agent, the Issuer, such Arranger or such
Lender is party thereto;
(d) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter relating
to the Borrower's or any of its Subsidiaries' compliance with or
liability under Environmental Law or the Release by the Borrower or
any of its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission or release from, any real
property owned or operated by the Borrower or any Subsidiary thereof
of any Hazardous Material present on or under such property in a
manner giving rise to liability at or prior to the time the Borrower
or such Subsidiary owned or operated such property (including any
losses, liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, the Borrower or such
Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or willful misconduct. The Borrower and its permitted
successors and assigns hereby waive, release and agree not to make any claim,
or bring any cost recovery action against, any Agent, the Issuer, any Arranger
or any Lender under CERCLA or any state equivalent, or any similar law now
existing or hereafter enacted, except to the extent arising out of the gross
negligence or willful misconduct of any Indemnified Party. It is expressly
understood and agreed that to the extent that any of such Persons is strictly
liable under any Environmental Laws, the Borrower's obligation to such Person
under this indemnity shall likewise be without regard to fault on the part of
the Borrower, to the extent permitted under applicable law, with respect to the
violation or condition which results in liability of such Person. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the
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obligations of the Lenders under Sections 4.8 and 9.1, shall in each case
survive any termination of this Agreement, the payment in full of all
Obligations and the termination of all Commitments. The representations and
warranties made by the Borrower and each other Obligor in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be executed by the Borrower and each Agent and be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto. Upon the execution and delivery of this Agreement by the parties
hereto, all obligations and liabilities of DLJ Merchant Banking Funding, Inc.
under or relating or with respect to the Commitment Letter shall be terminated
and of no further force or effect.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
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(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of each of the
Agents and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons, on a non pro rata basis (except
as provided below), in accordance with this Section 10.11.
SECTION 10.11.1. Assignments. Any Lender (the "Assignor
Lender"),
(a) with the written consents of the Borrower, the Agents and
(in the case of any assignment of participations in Letters of Credit
or Revolving Loan Commitments) the Issuer (which consents shall not be
unreasonably delayed or withheld and which consent, in the case of the
Borrower, shall be deemed to have been given in the absence of a
written notice delivered by the Borrower to the Agents, on or before
the fifth Business Day after receipt by the Borrower of such Lender's
request for such consent and which consents of the Agents and the
Issuer shall not be required in the case of assignments made by BofA
and DLJ or on any of their Affiliates) ,may at any time assign and
delegate to one or more commercial banks or other financial
institutions, and
(b) with notice to the Borrower, the Agents and (in the case
of any assignment of participations in Letters of Credit or Revolving
Loan Commitments) the Issuer, but without the consent of the Borrower,
the Agents or the Issuer,
may assign and delegate to any of its Affiliates or to any other Lender (each
Person described in either of the foregoing clauses as being the Person to whom
such assignment and delegation is to be made, being hereinafter referred to as
an "Assignee Lender"), all or any fraction of such Lender's total Loans,
participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments (which assignment and delegation shall be, as
among Revolving Loan Commitments, Revolving Loans and participations in Letters
of Credit, of a constant, and not a varying, percentage) in a minimum aggregate
amount of the lesser of (i) $1,000,000 (if such assignment and delegation is to
a then existing Lender) or $5,000,000 (if such assignment and delegation is to
a Person not then a Lender) or (ii) the then remaining
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amount of such Lender's Loans and Commitments; provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions contained in
Section 4.6 and the Borrower, each other Obligor and the Agents shall be
entitled to continue to deal solely and directly with such Lender in connection
with the interests so assigned and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee Lender, shall have been given to the
Borrower and the Agents by such Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to
the Borrower and the Agents a Lender Assignment Agreement, accepted by
the Agents; and
(e) the processing fees described below shall have been paid.
From and after the date that the Agents accept such Lender Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to
have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Assignee Lender in
connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the Assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within ten Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
Borrower shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender) new Notes evidencing such Assignee Lender's
assigned Loans and Commitments and, if the Assignor Lender has retained Loans
and Commitments hereunder, replacement Notes in the principal amount of the
Loans and Commitments retained by the Assignor Lender hereunder (such Notes to
be in exchange for, but not in payment of, those Notes then held by such
Assignor Lender). Each such Note shall be dated the date of the predecessor
Notes. The Assignor Lender shall ▇▇▇▇ the predecessor Notes "exchanged" and
deliver them to the Borrower. Accrued interest on that part of the predecessor
Notes evidenced by the new Notes, and accrued fees, shall be paid as provided
in the Lender Assignment Agreement. Accrued interest on that part of the
predecessor Notes evidenced by the replacement Notes shall be paid to the
Assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the
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predecessor Notes and in this Agreement. Such Assignor Lender or such Assignee
Lender (but excluding DLJ and its Affiliates and BofA and its Affiliates and
their assignors and assignees) must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,500, unless such assignment and delegation is by a Lender to its
Affiliate or if such assignment and delegation is by a Lender to the Federal
Reserve Bank, as provided below. Any attempted assignment and delegation not
made in accordance with this Section 10.11.1 shall be null and void. Nothing
contained in this Section 10.11.1 shall prevent or prohibit any Lender from
pledging its rights (but not its obligations to make Loans or participate in
Letters of Credit or Letter of Credit Outstandings) under this Agreement and/or
its Loans and/or its Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank. In the event
that S&P, ▇▇▇▇▇'▇ or ▇▇▇▇▇▇▇▇'▇ BankWatch (or InsuranceWatch Ratings Service,
in the case of Lenders that are insurance companies (or Best's Insurance
Reports, if such insurance company is not rated by Insurance Watch Ratings
Service)) shall, after the date that any Lender with a Commitment to make
Revolving Loans or participate in Letters of Credit becomes a Lender, downgrade
the long-term certificate of deposit rating or long-term senior unsecured debt
rating of such Lender, and the resulting rating shall be below BBB-, Baa3 or C
(or BB, in the case of Lender that is an insurance company (or B, in the case
of an insurance company not rated by InsuranceWatch Ratings Service))
respectively, then the Issuer or the Borrower (with the consent of the Agents
and the Issuer) shall have the right, but not the obligation, upon notice to
such Lender and the Agents, to replace such Lender with an Assignee Lender in
accordance with and subject to the restrictions contained in this Section, and
such Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in this Section) all
its interests, rights and obligations in respect of its Revolving Loan
Commitment under this Agreement to such Assignee Lender; provided, however,
that (i) no such assignment shall conflict with any law, rule and regulation or
order of any governmental authority and (ii) such Assignee Lender shall pay to
such Lender in immediately available funds on the date of such assignment the
principal of and interest and fees (if any) accrued to the date of payment on
the Loans made, and Letters of Credit participated in, by such Lender hereunder
and all other amounts accrued for such Lender's account or owed to it
hereunder.
SECTION 10.11.2. Participations. Any Lender may at any time sell to
one or more commercial banks or other Persons (each of such commercial banks
and other Persons being herein called a "Participant") participating interests
in any of the Loans,
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Commitments, participations in Letters of Credit or Letter of Credit
Outstandings or other interests of such Lender hereunder; provided, however,
that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and
each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate
of such Lender, or is itself a Lender, shall be entitled to require
such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree with
any Participant that such Lender will not, without such Participant's
consent, agree to (i) any reduction in the interest rate or amount of
fees that such Participant is otherwise entitled to, (ii) a decrease
in the principal amount, or an extension of the final Stated Maturity
Date, of any Loan in which such Participant has purchased a
participating interest or (iii) a release of all or substantially all
of the collateral security under the Loan Documents or all or
substantially all of the Subsidiary Guarantors under the Subsidiary
Guaranty, in each case except as otherwise specifically provided in a
Loan Document; and
(e) the Borrower shall not be required to pay any amount
under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than
the amount which it would have been required to pay had no
participating interest been sold.
The Borrower acknowledges and agrees, subject to clause (e) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes
of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION 10.11.3. Assignment of Registered Notes. A Registered Note and
the Obligation(s) evidenced thereby may be assigned or otherwise transferred in
whole or in part pursuant to the terms of Section 10.11.1 and only by
registration of such
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assignment or transfer of such Registered Note and the Obligation(s) evidenced
thereby on the Register (and each Registered Note shall expressly so provide).
Any assignment or transfer of all or part of such Obligation(s) and the
Registered Note(s) evidencing the same shall be registered on the Register only
upon surrender for registration of assignment or transfer of the Registered
Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a
written instrument of assignment or transfer duly executed by) the Registered
Noteholder thereof, and thereupon one or more new Registered Note(s) in the
same aggregate principal amount shall be issued to the designated Assignee
Lender, and the old Registered Note shall be returned by the Administrative
Agent to the Borrower marked "cancelled." Prior to the due presentment for
registration of assignment or transfer of any Registered Note, the Borrower and
the Agents shall treat the Person in whose name such Obligation(s) and the
Registered Note(s) evidencing the same is registered as the owner thereof for
the purpose of receiving all payments thereon and for all other purposes,
notwithstanding any notice to the contrary.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude any Agent, the Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Affiliates in which the Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS, THE ISSUER OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
(TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE STATE OF
NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY
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JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
BORROWER HEREBY IRREVOCABLY WAIVES (TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW) SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
SECTION 10.14. Waiver of Jury Trial. THE AGENTS, THE ISSUER, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS OR THE
BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, THE ISSUER AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.15. Confidentiality. The Agents, the Issuer, the Arrangers
and the Lenders shall hold all non-public information obtained pursuant to or
in connection with this Agreement or obtained by them based on a review of the
books and records of the Borrower or any of its Subsidiaries in accordance with
their customary procedures for handling confidential information of this
nature, but may make disclosure to any of their examiners, Affiliates, outside
auditors, counsel and other professional advisors in connection with this
Agreement or as reasonably required by any potential bona fide transferee,
participant or assignee, or in connection with the exercise of remedies under a
Loan Document, or as requested by any
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governmental agency or representative thereof or pursuant to
legal process; provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Agent, Issuer, Arranger and Lender shall notify the
Borrower of any request by any governmental agency or representative
thereof (other than any such request in connection with an examination
of the financial condition of such Agent, Issuer, Arranger and Lender
by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section
10.15, each Agent, Issuer, Arranger and Lender shall require any such
bona fide transferee, participant and assignee receiving a disclosure
of non-public information to agree in writing
(i) to be bound by this Section 10.15; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section 10.15; and
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by
the Borrower or any Subsidiary.
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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
day and year first above written.
BRAND SCAFFOLD SERVICES, INC.
By:_________________________
Title:
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and
as Lender
By:_________________________
Title:
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION,
as the Administrative Agent
By:_________________________
Title:
BANK OF AMERICA ILLINOIS,
as Issuer and Lender
By:_________________________
Title:
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.7 Litigation.
Description of Proceeding Action or Claim Sought
ITEM 6.8 Existing Subsidiaries.
ITEM 6.11 Employee Benefit Plans.
ITEM 6.12 Environmental Matters.
ITEM 7.1.12 Mortgaged Properties
ITEM 7.2.5(a) Ongoing Investments.
SCHEDULE II to
Credit Agreement
PERCENTAGES
Term-A Term-B Term-C
LOAN Loan Loan Loan
COMMITMENT Commitment Commitment Commitment
DLJ CAPITAL FUNDING, INC. 50% 50% 50% 50%
BANK OF AMERICA ILLINOIS 50% 50% 50% 50%
ADMINISTRATIVE INFORMATION
Notice Information
BRAND SCAFFOLD ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
SERVICES, INC. ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ Capital Funding, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
as Syndication Agent ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Bank of America National Agency Administrative Services #5596
Trust and Savings ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Association, as ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Administrative Agent Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Bank of America Illinois, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
as Issuer ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Lenders' Domestic and LIBOR Offices
DLJ Capital Funding, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Contact: ▇▇ ▇▇▇▇▇▇▇▇
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
Bank of America Illinois ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
III-2
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms........................................................................................... 3
1.2. Use of Defined Terms.................................................................................... 36
1.3. Cross-References........................................................................................ 36
1.4. Accounting and Financial Determinations................................................................. 37
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments............................................................................................. 37
2.1.1. Term Loan Commitments................................................................................. 37
2.1.2. Revolving Loan Commitment............................................................................. 38
2.1.3. Letter of Credit Commitment........................................................................... 38
2.1.4. Lenders Not Permitted or Required To Make the Loans................................................... 39
2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit................................................................................... 39
2.2. Reduction of the Commitment Amounts..................................................................... 39
2.2.1. Optional.............................................................................................. 39
2.2.2. Mandatory............................................................................................. 40
2.3. Borrowing Procedures and Funding Maintenance............................................................ 40
2.3.1. Term Loans and Revolving Loans........................................................................ 40
2.4. Continuation and Conversion Elections................................................................... 41
2.5. Funding................................................................................................. 41
2.6. Issuance Procedures..................................................................................... 42
2.6.1. Other Lenders' Participation.......................................................................... 42
2.6.2. Disbursements; Conversion to Revolving Loans.......................................................... 43
2.6.3. Reimbursement......................................................................................... 43
2.6.4. Deemed Disbursements.................................................................................. 44
2.6.5. Nature of Reimbursement Obligations................................................................... 45
2.7. Notes................................................................................................... 46
2.8. Registered Notes........................................................................................ 46
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application................................................................. 47
3.1.1. Repayments and Prepayments............................................................................ 47
3.1.2. Application........................................................................................... 53
3.2. Interest Provisions..................................................................................... 54
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3.2.1. Rates................................................................................................. 54
3.2.2. Post-Maturity Rates................................................................................... 54
3.2.3. Payment Dates......................................................................................... 55
3.3. Fees.................................................................................................... 55
3.3.1. Commitment Fee........................................................................................ 55
3.3.2. Agents' and Arrangers' Fees........................................................................... 56
3.3.3. Letter of Credit Fee.................................................................................. 56
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.............................................................................. 56
4.2. Deposits Unavailable.................................................................................... 57
4.3. Increased LIBO Rate Loan Costs, etc..................................................................... 57
4.4. Funding Losses ......................................................................................... 58
4.5. Increased Capital Costs................................................................................. 58
4.6. Taxes................................................................................................... 59
4.7. Payments, Computations, etc............................................................................. 61
4.8. Sharing of Payments..................................................................................... 62
4.9. Setoff.................................................................................................. 63
4.10. Mitigation............................................................................................. 63
4.11. Replacement of Lenders................................................................................. 63
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension................................................................................ 64
5.1.1. Resolutions, etc...................................................................................... 64
5.1.2. Acquisition Documents................................................................................. 65
5.1.3. Consummation of Merger................................................................................ 65
5.1.4. Closing Date Certificate.............................................................................. 65
5.1.5. Delivery of Notes..................................................................................... 65
5.1.6. Assumption Agreement.................................................................................. 65
5.1.7. Subsidiary Guaranty................................................................................... 65
5.1.8. Pledge Agreements..................................................................................... 66
5.1.9. Security Agreement.................................................................................... 66
5.1.10. Financial Information, etc........................................................................... 67
5.1.11. Solvency, etc........................................................................................ 68
5.1.12. Issuance of the Seller Note.......................................................................... 68
5.1.13. Equity Issuance and Contribution and Preferred Stock Sale............................................ 68
5.1.14. Closing Fees, Expenses, etc.......................................................................... 68
5.1.15. Patent Security Agreement............................................................................ 68
5.1.16. Litigation........................................................................................... 68
5.1.17. Material Adverse Change.............................................................................. 69
5.1.18. Reliance Letters..................................................................................... 69
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5.1.19. Opinions of Counsel.................................................................................. 69
5.1.20. Insurance............................................................................................ 69
5.1.21. Perfection Certificate............................................................................... 69
5.2. All Credit Extensions................................................................................... 69
5.2.1. Compliance with Warranties, No Default, etc........................................................... 70
5.2.2. Credit Extension Request.............................................................................. 70
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc....................................................................................... 70
6.2. Due Authorization, Non-Contravention, etc............................................................... 71
6.3. Government Approval, Regulation, etc.................................................................... 71
6.4. Validity, etc. ......................................................................................... 72
6.5. Financial Information................................................................................... 72
6.6. No Material Adverse Change.............................................................................. 72
6.7. Litigation, Labor Controversies, etc.................................................................... 72
6.8. Subsidiaries............................................................................................ 73
6.9. Ownership of Properties................................................................................. 73
6.10. Taxes.................................................................................................. 73
6.11. Pension and Welfare Plans.............................................................................. 73
6.12. Environmental Warranties............................................................................... 74
6.13. Regulations G, U and X................................................................................. 75
6.14. Accuracy of Information................................................................................ 75
6.15. Solvency............................................................................................... 76
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants................................................................................... 76
7.1.1. Financial Information, Reports, Notices, etc.......................................................... 76
7.1.2. Compliance with Laws, etc............................................................................. 79
7.1.3. Maintenance of Properties............................................................................. 79
7.1.4. Insurance............................................................................................. 79
7.1.5. Books and Records..................................................................................... 79
7.1.6. Environmental Covenant................................................................................ 80
7.1.7. Future Subsidiaries................................................................................... 80
7.1.8. Future Leased Property and Future Acquisitions of Real Property;
Future Acquisition of Other Property...................................................... 82
7.1.9. Use of Proceeds, etc.................................................................................. 83
7.1.10. Hedging Obligations.................................................................................. 84
7.1.11. Borrower Pledge Agreement............................................................................ 84
7.1.12. Mortgages............................................................................................ 84
7.1.13. Post Closing Items................................................................................... 85
(b) Solvency Opinion......................................................................................... 85
(c) Additional Opinions...................................................................................... 85
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Section Page
7.2. Negative Covenants...................................................................................... 85
7.2.1. Business Activities................................................................................... 85
7.2.2. Indebtedness ......................................................................................... 85
7.2.3. Liens................................................................................................. 86
7.2.4. Financial Condition................................................................................... 88
7.2.5. Investments ......................................................................................... 89
7.2.6. Restricted Payments, etc.............................................................................. 90
7.2.7. Capital Expenditures, etc............................................................................. 93
7.2.8. Consolidation, Merger, etc............................................................................ 93
7.2.9. Asset Dispositions, etc............................................................................... 94
7.2.10. Modification of Certain Agreements................................................................... 95
7.2.11. Transactions with Affiliates......................................................................... 95
7.2.12. Negative Pledges, Restrictive Agreements, etc........................................................ 96
7.2.13. Stock of Subsidiaries................................................................................ 96
7.2.14. Sale and Leaseback................................................................................... 96
7.2.15. Consummation of Merger............................................................................... 96
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default............................................................................ 97
8.1.1. Non-Payment of Obligations............................................................................ 97
8.1.2. Breach of Warranty.................................................................................... 97
8.1.3. Non-Performance of Certain Covenants and Obligations.................................................. 97
8.1.4. Non-Performance of Other Covenants and Obligations.................................................... 97
8.1.5. Default on Other Indebtedness......................................................................... 97
8.1.6. Judgments............................................................................................. 98
8.1.7. Pension Plans......................................................................................... 98
8.1.8. Change in Control..................................................................................... 98
8.1.9. Bankruptcy, Insolvency, etc........................................................................... 98
8.1.10. Impairment of Security, etc.......................................................................... 99
8.1.11. Seller Note Redemption...............................................................................100
8.2. Action if Bankruptcy, etc...............................................................................100
8.3. Action if Other Event of Default........................................................................100
ARTICLE IX
THE AGENTS
9.1. Actions.................................................................................................101
9.2. Funding Reliance, etc...................................................................................101
9.3. Exculpation.............................................................................................102
9.4. Successor...............................................................................................102
9.5. Credit Extensions by each Agent.........................................................................103
9.6. Credit Decisions........................................................................................103
9.7. Copies, etc.............................................................................................104
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ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc...............................................................................104
10.2. Notices................................................................................................106
10.3. Payment of Costs and Expenses..........................................................................106
10.4. Indemnification........................................................................................107
10.5. Survival...............................................................................................108
10.6. Severability...........................................................................................109
10.7. Headings...............................................................................................109
10.8. Execution in Counterparts, Effectiveness, etc..........................................................109
10.9. Governing Law; Entire Agreement........................................................................109
10.10. Successors and Assigns................................................................................109
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes...............................110
10.11.1. Assignments.........................................................................................110
10.11.2. Participations......................................................................................112
10.11.3. Assignment of Registered Notes......................................................................113
10.12. Other Transactions....................................................................................114
10.13. Forum Selection and Consent to Jurisdiction...........................................................114
10.14. Waiver of Jury Trial..................................................................................115
10.15. Confidentiality.......................................................................................115
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term-A Note
EXHIBIT A-3 - Form of Term-B Note
EXHIBIT A-4 - Form of Term-C Note
EXHIBIT A-5 - Form of Registered Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT B-3 - Form of Borrowing Base Certificate
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of Borrower Security Agreement
EXHIBIT F-2 - Form of Subsidiary Security Agreement
EXHIBIT G-1 - Form of Holdco Pledge Agreement
EXHIBIT G-2 - Form of Borrower Pledge Agreement
EXHIBIT G-3 - Form of Subsidiary Pledge Agreement
EXHIBIT H - Form of Subsidiary Guaranty
EXHIBIT I - Form of Perfection Certificate
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K-1 - Form of New York Counsel Opinion
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EXHIBIT K-2 - Form of Illinois Counsel Opinion
EXHIBIT L - Form of Seller Note
EXHIBIT M - Form of Assumption Agreement
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