1
EXHIBIT 10.7
EXECUTION COPY
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of August 5, 1997
among
AAS HOLDINGS, LLC
ADVANCED ACCESSORY SYSTEMS, LLC
VALLEY INDUSTRIES, LLC
BRINK INTERNATIONAL BV
BRINK BV
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
NBD BANK,
as Administrative Agent and
Documentation and Collateral Agent
and
THE CHASE MANHATTAN BANK,
as Co-Administrative Agent
and Syndication Agent
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TABLE OF CONTENTS
PAGE
ARTICLE I: DEFINITIONS...................................................................................1
1.1 Certain Defined Terms.......................................................................1
1.2 Supplemental Disclosure....................................................................41
ARTICLE II: THE CREDITS.................................................................................42
2.1. Term Loans.................................................................................42
2.2 Revolving Loans............................................................................46
2.3 Swing Line Loans...........................................................................46
2.4 Rate Options for all Advances..............................................................48
2.5 Optional Payments; Mandatory Prepayments...................................................48
(A) Optional Payments.................................................................48
(B) Mandatory Prepayments.............................................................48
2.6 Reduction of Commitments...................................................................52
2.7 Method of Borrowing........................................................................52
2.8 Method of Selecting Types and Interest Periods for Advances; Determination of
Applicable Margins.....................................................................52
(a) Method of Selecting Types and Interest Periods for Advances.......................52
(b) Determination of Applicable Margins, Applicable Letter of Credit Fee and
Applicable Commitment Fee.....................................................53
2.9 Minimum Amount of Each Advance.............................................................55
2.10 Method of Selecting Types and Interest Periods for Conversion and Continuation
of Advances............................................................................55
(A) Right to Convert..................................................................55
(B) Automatic Conversion and Continuation.............................................56
(C) No Conversion Post-Default or Post-Unmatured Default..............................56
(D) Conversion/Continuation Notice....................................................56
2.11 Default Rate..............................................................................56
2.12 Collections Account Arrangements..........................................................56
2.13 Method of Payment.........................................................................57
2.14 Notes, Telephonic Notices.................................................................58
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest and Fee Basis;
Taxes; Loan and Control Accounts.......................................................58
(A) Promise to Pay....................................................................58
(B) Interest Payment Dates............................................................59
(C) Fees..............................................................................59
(D) Interest and Fee Basis............................................................59
(E) Taxes.............................................................................60
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(F) Loan Account......................................................................63
(G) Control Account...................................................................63
(H) Entries Binding...................................................................63
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving
Loan Commitment Reductions.............................................................64
2.17 Lending Installations.....................................................................64
2.18 Non-Receipt of Funds by the Administrative Agent..........................................64
2.19 Termination Date..........................................................................64
2.20 Replacement of Certain Lenders............................................................65
2.21 Letter of Credit Facility.................................................................66
2.22 Letter of Credit Participation............................................................66
2.23 Reimbursement Obligation..................................................................67
2.24 Cash Collateral...........................................................................67
2.25 Letter of Credit Fees.....................................................................68
2.26 Indemnification; Exoneration..............................................................68
2.27 Judgment Currency.........................................................................70
2.28 Market Disruption.........................................................................70
2.29 Borrowing Subsidiaries....................................................................70
ARTICLE III: CHANGE IN CIRCUMSTANCES....................................................................71
3.1 Yield Protection...........................................................................71
3.2 Changes in Capital Adequacy Regulations....................................................72
3.3 Availability of Types of Advances..........................................................73
3.4 Funding Indemnification....................................................................73
3.5 Lender Statements; Survival of Indemnity...................................................73
ARTICLE IV: CONDITIONS PRECEDENT........................................................................74
4.1 Initial Advances and Letters of Credit.....................................................74
4.2 Each Advance and Letter of Credit..........................................................74
ARTICLE V: REPRESENTATIONS AND WARRANTIES...............................................................74
5.1 Organization; Powers.......................................................................75
5.2 Authority..................................................................................75
5.3 No Conflict; Governmental Consents.........................................................76
5.4 Financial Statements.......................................................................76
5.5 No Material Adverse Change.................................................................77
5.6 Taxes......................................................................................77
(A) Tax Examinations..................................................................77
(B) Payment of Taxes..................................................................77
5.7 Litigation; Loss Contingencies and Violations..............................................77
5.8 Subsidiaries...............................................................................78
5.9 ERISA......................................................................................78
5.10 Accuracy of Information...................................................................79
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5.11 Securities Activities.....................................................................79
5.12 Material Agreements.......................................................................79
5.13 Compliance with Laws......................................................................79
5.14 Assets and Properties.....................................................................80
5.15 Statutory Indebtedness Restrictions.......................................................80
5.16 Post-Retirement Benefits..................................................................80
5.17 Insurance.................................................................................80
5.18 Contingent Obligations....................................................................80
5.19 Restricted Junior Payments................................................................80
5.20 Labor Matters.............................................................................81
5.21 The Valley Acquisition....................................................................81
5.22 Environmental Matters.....................................................................81
5.23 Capitalization............................................................................82
5.24 Solvency..................................................................................82
5.25 Foreign Employee Benefit Matters..........................................................83
5.26 Dutch Withholding.........................................................................83
ARTICLE VI: COVENANTS...................................................................................83
6.1 Reporting..................................................................................83
(A) Financial Reporting...............................................................83
(B) Notice of Default.................................................................85
(C) Lawsuits..........................................................................85
(D) Insurance.........................................................................86
(E) ERISA Notices.....................................................................86
(F) Labor Matters.....................................................................88
(G) Other Indebtedness................................................................88
(H) Other Reports.....................................................................88
(I) Environmental Notices.............................................................88
(J) Borrowing Base Certificate........................................................88
(K) Other Information.................................................................89
6.2 Affirmative Covenants......................................................................89
(A) Existence, Etc....................................................................89
(B) Powers............................................................................89
(C) Compliance with Laws, Etc.........................................................89
(D) Payment of Taxes and Claims; Tax Consolidation....................................90
(E) Insurance.........................................................................90
(F) Inspection of Property; Books and Records; Discussions............................90
(G) Insurance and Condemnation Proceeds...............................................91
(H) ERISA Compliance..................................................................92
(I) Maintenance of Property...........................................................92
(J) Environmental Compliance..........................................................92
(K) Use of Proceeds...................................................................92
(L) Interest Rate Agreements..........................................................92
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(M) High Yield Offering...............................................................93
(N) Foreign Employee Benefit Compliance...............................................93
6.3 Negative Covenants.........................................................................93
(A) Indebtedness......................................................................93
(B) Sales of Assets...................................................................95
(C) Liens.............................................................................95
(D) Investments.......................................................................96
(E) Contingent Obligations............................................................97
(F) Restricted Junior Payments........................................................98
(G) Conduct of Business; Subsidiaries; Acquisitions...................................99
(H) Transactions with Shareholders and Affiliates....................................100
(I) Restriction on Fundamental Changes...............................................100
(J) Sales and Leasebacks.............................................................101
(K) Margin Regulations...............................................................101
(L) ERISA............................................................................101
(M) Issuance of Equity Interests.....................................................102
(N) Organizational Documents.........................................................102
(O) Other Indebtedness...............................................................102
(P) Fiscal Year......................................................................102
(Q) Change of Deposit Accounts.......................................................102
(R) Rate Hedging Obligations.........................................................103
(S) Subordinated Indebtedness........................................................103
6.4 Financial Covenants.......................................................................103
(A) Defined Terms for Financial Covenants............................................103
(B) Rentals..........................................................................105
(C) Fixed Charge Coverage Ratio......................................................105
(D) Minimum Consolidated Net Worth...................................................106
(E) Maximum Leverage Ratio...........................................................106
(F) Capital Expenditures.............................................................107
ARTICLE VII: DEFAULTS..................................................................................107
7.1 Defaults..................................................................................107
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES........................................................................110
8.1 Remedies..................................................................................110
(a) Termination of Commitments; Acceleration.........................................110
(b) Rescission.......................................................................111
(c) Enforcement.......................................................................111
8.2 Defaulting Lender.........................................................................111
8.3 Amendments................................................................................113
8.4 Preservation of Rights....................................................................114
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ARTICLE IX: GENERAL PROVISIONS.........................................................................114
9.1 Survival of Representations...............................................................114
9.2 Governmental Regulation...................................................................115
9.3 Performance of Obligations................................................................115
9.4 Headings..................................................................................115
9.5 Entire Agreement..........................................................................116
9.6 Several Obligations; Benefits of this Agreement...........................................116
9.7 Expenses; Indemnification.................................................................116
(A) Expenses.........................................................................116
(B) Indemnity........................................................................117
(C) Waiver of Certain Claims; Settlement of Claims...................................118
(D) Survival of Agreements...........................................................118
9.8 Numbers of Documents......................................................................118
9.9 Accounting................................................................................118
9.10 Severability of Provisions...............................................................118
9.11 Nonliability of Lenders..................................................................118
9.12 GOVERNING LAW............................................................................118
9.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL..................................119
(A) EXCLUSIVE JURISDICTION...........................................................119
(B) OTHER JURISDICTIONS..............................................................119
(C) VENUE............................................................................120
(D) WAIVER OF JURY TRIAL.............................................................120
(E) WAIVER OF BOND...................................................................120
(F) ADVICE OF COUNSEL................................................................120
9.14 No Strict Construction...................................................................120
ARTICLE X: THE ADMINISTRATIVE AGENT....................................................................121
10.1 Appointment; Nature of Relationship......................................................121
10.2 Powers...................................................................................122
10.3 General Immunity.........................................................................122
10.4 No Responsibility for Loans, Creditworthiness, Collateral, Recitals, Etc.................122
10.5 Action on Instructions of Lenders........................................................123
10.6 Employment of Administrative Agents and Counsel..........................................123
10.7 Reliance on Documents; Counsel...........................................................123
10.8 The Agents' Reimbursement and Indemnification............................................123
10.9 Rights as a Lender.......................................................................124
10.10 Lender Credit Decision..................................................................124
10.11 Successor Administrative Agent; Successor Documentation and Collateral Agent............124
10.12 Collateral Documents....................................................................125
ARTICLE XI: SETOFF; RATABLE PAYMENTS...................................................................126
11.1 Setoff...................................................................................126
11.2 Ratable Payments.........................................................................126
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PAGE
11.3 Application of Payments..................................................................126
11.4 Relations Among Lenders..................................................................127
ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.........................................127
12.1 Successors and Assigns...................................................................127
12.2 Participations...........................................................................128
(A) Permitted Participants; Effect...................................................128
(B) Voting Rights....................................................................128
(C) Benefit of Setoff................................................................129
12.3 Assignments..............................................................................129
(A) Permitted Assignments............................................................129
(B) Effect; Effective Date...........................................................129
(C) The Register.....................................................................130
12.4 Confidentiality..........................................................................130
12.5 Dissemination of Information.............................................................130
ARTICLE XIII: NOTICES..................................................................................131
13.1 Giving Notice............................................................................131
13.2 Change of Address........................................................................131
ARTICLE XIV: COUNTERPARTS..............................................................................131
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EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Borrowing Base Certificate
(Definitions)
EXHIBIT B -- Commitments
(Definitions)
EXHIBIT C -- Form of Revolving Note
(Definitions)
EXHIBIT D-1 -- Form of Tranche A Term Note
(Definitions)
EXHIBIT D-2 -- Form of Tranche B Term Note
(Definitions)
EXHIBIT E -- Form of Swing Line Loan Note
(Definitions)
EXHIBIT F -- Form of Assignment Agreement
(Sections 2.19, 12.3)
EXHIBIT G -- List of Closing Documents
(Section 4.1)
EXHIBIT H -- Form of Officer's Certificate
(Sections 4.2, 6.1(A)(iv))
EXHIBIT I -- Form of Compliance Certificate
(Sections 4.2, 6.1(A)(iv))
EXHIBIT J -- Pro Forma Financial Statements
(Section 5.4(A))
EXHIBIT K -- Form of Assumption Letter
(Definitions)
EXHIBIT J -- Acquisition Agreement
(Definitions)
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SCHEDULES
Schedule 1.1.1 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Investments (Definitions)
Schedule 1.1.4 -- Permitted Existing Liens (Definitions)
Schedule 5.3 -- Conflicts; Governmental Consents (Section 5.3)
Schedule 5.7 -- Litigation; Loss Contingencies (Section 5.7)
Schedule 5.8 -- Subsidiaries (Section 5.8)
Schedule 5.17 -- Insurance (Sections 5.17, 6.2(E))
Schedule 5.18 -- Contingent Obligations (Sections 5.7, 5.18)
Schedule 5.20 -- Labor Matters; Compensation Agreements (Section 5.20)
Schedule 5.22 -- Environmental Matters (Section 5.22)
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement dated as of August 5,
1997 is entered into among AAS Holdings, LLC, a Delaware limited liability
company, Advanced Accessory Systems, LLC, a Delaware limited liability company,
Valley Industries, LLC, a Delaware limited liability company, Brink
International BV, a private company with limited liability incorporated under
the laws of The Netherlands, Brink BV, a private company with limited liability
incorporated under the laws of The Netherlands, and any Borrowing Subsidiaries
which are now or may hereafter become a party hereto from time to time, the
institutions from time to time a party hereto as Lenders, whether by execution
of this Agreement or an assignment and acceptance pursuant to Section 12.3, NBD
Bank, in its capacity as Administrative Agent for itself and the other Lenders
and as Documentation and Collateral Agent, The Chase Manhattan Bank, in its
capacity as Co-Administrative Agent and Syndication Agent and Chase Manhattan
Bank Delaware, a Delaware banking corporation, as an Issuing Lender (as defined
in Section 2.21) to amend and restate the Amended and Restated Credit Agreement
entered into on or about December 26, 1996 among certain of the parties hereto
(the "Existing Credit Agreement" which was an amendment to and restatement of
the Credit Agreement dated as of October 30, 1996 among certain of the parties
hereto) which is hereby amended and restated in its entirety. The parties hereto
agree as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined in other
sections of this Agreement, the following terms used in this Agreement shall
have the following meanings, applicable both to the singular and the plural
forms of the terms defined:
As used in this Agreement:
"AAS" means Advanced Accessory Systems, LLC, a Delaware limited
liability company, and its successors and assigns, including a
debtor-in-possession on behalf of AAS.
"AAS CANADA" means Advanced Accessory Systems Canada Inc./Les Systemes
d'Accessoire Advanced Canada inc., and its successors and assigns.
"ACCOUNT DEBTOR" means the account debtor or obligor with respect to
any of the Receivables and/or the prospective purchaser with respect to any
contract right, and/or any party who enters into or proposes to enter into any
contract or other arrangement with a Borrower.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which a
Borrower or any Subsidiary of a Borrower
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(i) acquires any going business or all or substantially all of the assets of any
firm, corporation or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires (in one transaction
or as the most recent transaction in a series of transactions) at least a
majority (in number of vote) of the securities of a corporation which have
ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or a
majority (by percentage of voting power), of the membership, ownership or other
equity interests in a limited liability company or of the outstanding
partnership interests of a partnership.
"ACQUISITION AGREEMENT" has the meaning given that term in the
definition of Valley Acquisition below.
"ACQUISITION DOCUMENTS" means the Acquisition Agreement and all other
documents, instruments and agreements entered into by Valley in connection with
the Valley Acquisition.
"ADMINISTRATIVE AGENT" means NBD in its capacity as contractual
representative for itself and the Lenders pursuant to Article X hereof and any
successor Administrative Agent appointed pursuant to Article X hereof.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans (other than Swing Line Loans) made by the Lenders to
any Borrower of the same Type and, in the case of Eurocurrency Rate Advances,
denominated in the same currency and for the same Interest Period.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act)
of greater than ten percent (10%) or more of any class of voting securities (or
other voting interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock,
membership, ownership or other equity interests, by contract or otherwise. In
addition, each director of a Borrower or any Subsidiary of a Borrower shall be
deemed to be an Affiliate of each Borrower. Notwithstanding the foregoing, none
of Chase, any Subsidiary or Affiliate (including Chase Capital Partners) of, or
any Person which directly or indirectly controls, is under common control with
or is controlled by Chase Capital Partners shall be deemed to be an Affiliate of
any Borrower solely as a result of such Person's affiliation with Chase Capital
Partners.
"AGENTS" means the Administrative Agent, the Documentation and
Collateral Agent, the Co-Administrative Agent and the Syndication Agent.
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"AGREED CURRENCIES" means Dollars, Dutch Guilders, and any other
currency which is freely available and convertible into Dollars in which
deposits are customarily offered to banks in the London interbank market, which
the applicable Borrower requests the Administrative Agent to include as an
Agreed Currency hereunder and which is acceptable to each Lender; provided that
the Administrative Agent shall promptly notify each Lender of each such request
and each Lender shall be deemed not to have agreed to each such request unless
its consent thereto has been received by the Administrative Agent within four
Business Days from the date of such notification by the Administrative Agent to
such Lender.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof. The initial Aggregate Revolving Loan Commitment is
Twenty-Five Million and 00/100 Dollars ($25,000,000.00).
"AGGREGATE TERM LOAN COMMITMENT" means the aggregate of the Tranche A
Term Loan Commitments and the Tranche B Term Loan Commitments. The Aggregate
Term Loan Commitment is One Hundred Fifteen Million Nine Hundred Eighty Two
Thousand and 00/100 Dollars ($115,982,000.00).
"AGREEMENT" means this Credit Agreement, as it may be amended, restated
or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect as of the date of this Agreement in the United States,
applied in a manner consistent with that used by Holdings and AAS in their
preparation of their audited financial statements for the year ended December
31, 1996.
"ALTERNATE BASE RATE" means, for any day, a fluctuating interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) as shall be in
effect from time to time, which rate per annum shall at all times be equal to
the greatest of (a) the Prime Rate in effect on such day; and (b) the sum of
one-half of one percent (0.50%) and the Federal Funds Effective Rate in effect
on such day. For purposes hereof, "Prime Rate" shall mean the rate of interest
per annum publicly announced from time to time by NBD as its prime rate (it
being acknowledged that such announced rate may not necessarily be the lowest
rate charged by the Administrative Agent to any of its customers) in effect at
its principal office in Detroit, Michigan; each change in the Prime Rate shall
be effective on the date such change is publicly announced as being effective.
"Federal Funds Effective Rate" shall mean, for any day, a fluctuating interest
rate per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions
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received by NBD from three Federal funds brokers of recognized standing
selected by the Administrative Agent. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms hereof, the Alternate Base
Rate shall be determined without regard to clause (b) of the first sentence of
this definition until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the effective date of
such change.
"APPLICABLE BASE RATE MARGINS" as at any date of determination, shall
be the rate per annum then applicable to Base Rate Loans which are Revolving
Loans, Tranche A Term Loans or Tranche B Term Loans, as applicable, determined
in accordance with the provisions of Section 2.8(b).
"APPLICABLE COMMITMENT FEE" as at any date of determination, shall be
the rate per annum then applicable in the determination of the amount payable
under Section 2.15(C) with respect to the unused Aggregate Revolving Loan
Commitment, determined in accordance with the provisions of Section 2.8(b).
"APPLICABLE EUROCURRENCY MARGINS" as at any date of determination,
shall be the rate per annum then applicable to Eurocurrency Rate Loans which are
Revolving Loans, Tranche A Term Loans or Tranche B Term Loans, as applicable,
determined in accordance with the provisions of Section 2.8(b).
"APPLICABLE LETTER OF CREDIT FEE" as at any date of determination,
shall be the rate per annum then applicable in the determination of the amount
payable under Section 2.25 with respect to Letters of Credit, determined in
accordance with the provisions of Section 2.8(b).
"APPLICABLE MARGIN(S)" shall have the meaning ascribed to that term in
Section 2.8(b).
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars at such date (i) if such currency is Dutch Guilders,
rounded up to the nearest 100,000 of such currency and (ii) if such currency is
any other Agreed Currency, rounded up to the nearest amount of such currency as
determined by the Administrative Agent from time to time.
"ARRANGERS" means Chase Securities Inc. and First Chicago Capital
Markets, Inc.
"ASSET SALE" means, with respect to any Person, (i) the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction and including the sale or
other transfer of any of the capital stock or ownership,
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membership or other equity interest of any Subsidiary of such Person)
or (ii) the issuance, sale, conveyance, disposition or other transfer by such
Person of any Capital Stock of or ownership, membership or other equity
interests in such Person; provided, however, that notwithstanding the foregoing,
the term "Asset Sale" shall not include the sale, lease, conveyance, disposition
or other transfer of inventory in the ordinary course of business.
"ASSUMPTION LETTER" means a letter of a Subsidiary of Holdings
addressed to the Lenders substantially in the form of Exhibit K hereto pursuant
to which such Subsidiary agrees to become a "Borrowing Subsidiary" and agrees to
be bound by the terms hereof.
"AUTHORIZED OFFICER" means any of the chief executive officer, chief
financial officer, controller and treasurer of a Borrower, acting singly.
"BASE RATE" means, for any day for any Loan, a rate per annum equal to
(i) the Alternate Base Rate for such day plus (ii) the Applicable Base Rate
Margin applicable to such Loan, changing when and as the Alternate Base Rate
changes.
"BASE RATE ADVANCE" means an Advance which bears interest at the Base
Rate.
"BASE RATE LOAN" means a Loan, or portion thereof, which bears interest
at the Base Rate.
"▇▇▇▇ PURCHASE AGREEMENT" means that certain Asset Purchase Agreement
among ▇▇▇▇ Sports Corp., ▇▇▇▇ Sports Canada Inc. and AAS Canada dated as of July
2, 1997.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan) in respect of which the Borrower or
any other member of the Controlled Group is, or within the immediately preceding
six (6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means, as applicable, Holdings, AAS, Brink International,
Brink, Valley and their respective successors and assigns and any Borrowing
Subsidiary.
"BORROWING BASE" means, as of any date of calculation, an amount, as
set forth on the most current Borrowing Base Certificate delivered to the
Administrative Agent, equal to the sum of: (i) eighty-five percent (85%) of the
Gross Amount of Eligible U.S. Receivables; plus (ii) eighty percent (80%) of the
Gross Amount of Eligible Dutch Receivables; plus (iii) eighty percent (80%) of
the Gross Amount of Eligible Canadian Receivables; plus (iv) the lesser of (A)
$10,000,000 and (B) the sum of fifty percent (50%) of the Gross Amount of
Eligible U.S. Inventory plus forty percent (40%) of the Gross Amount of Eligible
Dutch Inventory; plus fifty percent (50%) of the Gross Amount of Eligible
Canadian Inventory.
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"BORROWING BASE CERTIFICATE" means a certificate, in substantially the
form of Exhibit A attached hereto and made a part hereof, setting forth the
Borrowing Base and the component calculations thereof.
"BORROWING DATE" means a date on which an Advance or a Swing Line Loan
is made hereunder.
"BORROWING NOTICE" is defined in Section 2.8 hereof.
"BORROWING SUBSIDIARY" means any Borrowing Subsidiary duly designated
by Holdings pursuant to Section 2.29 hereof to request Advances hereunder,
provided 95% of the Capital Stock of such Subsidiary is owned directly or
indirectly by Holdings and such Subsidiary shall have delivered to the
Administrative Agent an Assumption Letter in accordance with Section 2.29 and
such other documents, instruments and agreements as may be required pursuant to
the terms of this Agreement.
"BRINK ACQUISITION" means AAS Holdings, Inc., a Delaware corporation.
"BRINK" means Brink BV, a private company with limited liability
incorporated under the laws of The Netherlands and a wholly-owned Subsidiary of
Holdings.
"BRINK INTERNATIONAL" means Brink International BV, a private company
with limited liability incorporated under the laws of The Netherlands and a
wholly-owned Subsidiary of Holdings.
"BUSINESS ACTIVITY REPORT" means (A) a Notice of Business Activities
Report from the State of Minnesota, Department of Revenue or (B) any similar
report required by any other State relating to the ability of the Borrower or
its Subsidiaries to enforce their accounts receivable claims against account
debtors located in any such state.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurocurrency Rate, a day (other than
a Saturday or Sunday) on which banks are open for business in Detroit, Michigan
and New York, New York and on which dealings in United States Dollars and the
other Agreed Currencies are carried on in the London interbank market and (ii)
for all other purposes a day (other than a Saturday or Sunday) on which banks
are open for business in Detroit, Michigan and New York, New York.
"CANADIAN LENDERS" means First Chicago NBD Bank, Canada, The Chase
Manhattan Bank of Canada and The Bank of Nova Scotia in their capacity as
lenders to AAS Canada and any successors or assigns of either.
"CAPITAL EXPENDITURES" is defined in Section 6.4(A) hereof.
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"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CAPITAL STOCK", with respect to any Person, means any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States, the
government of Canada or the government of any member of the European Union; (ii)
domestic and Eurocurrency certificates of deposit and time deposits, bankers'
acceptances and base rate certificates of deposit issued by any commercial bank
organized under the laws of the United States, any state thereof, the District
of Columbia, or its branches or agencies or under the laws of Canada or the laws
of any member of the European Union and having capital and surplus in an
aggregate amount not less than $500,000,000 (fully protected against currency
fluctuations for any such deposits with a term of more than ten (10) days);
(iii) shares of money market, mutual or similar funds having net assets in
excess of $500,000,000 maturing or being due or payable in full not more than
one hundred eighty (180) days any Borrower's acquisition thereof and the
investments of which are limited to investment grade securities (i.e.,
securities rated at least Baa by ▇▇▇▇▇'▇ Investors Service, Inc. or at least BBB
by Standard & Poor's Ratings Group) or shares of similar funds of similar credit
quality in Europe approved for such purposes by the Administrative Agent in its
sole discretion and (iv) commercial paper of United States and foreign banks and
bank holding companies and their subsidiaries and United States and foreign
finance, commercial, industrial or utility companies which, at the time of
acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or P-1
(or better) by ▇▇▇▇▇'▇ Investors Services, Inc. or commercial paper of Dutch,
Canadian, British or French banks of similar credit quality approved for such
purposes by the Administrative Agent in its sole discretion; provided that the
maturities of such Cash Equivalents shall not exceed 365 days.
"CASH FLOW PERIOD" means each 12-month period ending on December 31 of
each calendar year commencing with the 12-month period ending December 31, 1997.
"CB CAPITAL" means CB Capital Investors, Inc., a Delaware corporation
and a wholly-owned Subsidiary of Chase.
"CHANGE" is defined in Section 3.2 hereof.
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17
"CHANGE OF CONTROL" means an event or series of events by which (a)
prior to any initial public offering of equity interests in Holdings:
(i) CB Capital or an entity controlled by Chase
Capital Partners or CB Capital ceases to be the "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange
Act), directly or indirectly, of at least forty percent (40%)
(or thirty-three percent (33%) if the reduction below forty
percent (40%) is attributable solely to dilution as a result
of an acquisition or acquisitions permitted by this Agreement
or consented to by the Required Lenders) of the ownership,
membership or other equity interests of Holdings ordinarily
having the right to vote at an election of managers;
(ii) Holdings ceases to be the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act),
directly or indirectly, of at least ninety-nine percent (99%)
of the combined voting power of the ownership, membership or
other equity interests of both AAS and Brink ordinarily having
the right to vote at an election of managers;
(iii) CB Capital or an entity controlled by Chase
Capital Partners or CB Capital, together with members of
management of Holdings and its Subsidiaries, members of the
Brink family and related Affiliates, F. ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, cease to be the "beneficial owner"(as defined in
Rule 13d-3 under the Securities Exchange Act), directly or
indirectly, of at least fifty-one percent (51%) on a fully
diluted basis of the ownership, membership or other equity
interests of both AAS and Brink ordinarily having the right to
vote at an election of managers; or
(iv) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act)
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Securities Exchange Act), directly or indirectly, of an
equal or greater percentage of the total economic interests in
equity of Holdings than that percentage beneficially owned by
CB Capital or an entity controlled by Chase Capital Partners
or CB Capital; and
(b) after any initial public offering of equity interests in
Holdings:
(i) CB Capital or an entity controlled by Chase
Capital Partners or CB Capital ceases to be the "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange
Act), directly or indirectly, of at least twenty-eight percent
(28%) (or twenty-two percent (22%) if the reduction below
twenty-eight percent (28%) is attributable solely to dilution
as a result of an acquisition or acquisitions permitted by
this Agreement or consented to by the Required Lenders) of the
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ownership, membership or other equity interests of Holdings
ordinarily having the right to vote at an election of
managers;
(ii) Holdings ceases to be the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act),
directly or indirectly, of at least ninety-nine percent (99%)
of the combined voting power of the ownership, membership or
other equity interests of both AAS and Brink ordinarily having
the right to vote at an election of managers;
(iii) CB Capital or an entity controlled by Chase
Capital Partners or CB Capital, together with members of
management of Holdings and its Subsidiaries, members of the
Brink family and related Affiliates, F. ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, cease to be the "beneficial owner"(as defined in
Rule 13d-3 under the Securities Exchange Act), directly or
indirectly, of at least thirty-four percent (34%) on a fully
diluted basis of the ownership, membership or other equity
interests of both AAS and Brink ordinarily having the right to
vote at an election of managers; or
(iv) any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act)
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Securities Exchange Act), directly or indirectly, of an
equal or greater percentage of the total economic interests in
equity of Holdings than that percentage beneficially owned by
CB Capital or an entity controlled by Chase Capital Partners
or CB Capital.
"CHASE" means The Chase Manhattan Bank, in its individual capacity.
"CLOSING DATE" means the date on which a portion of the Term Loans and
the initial Revolving Loans were advanced under the Credit Agreement dated as of
October 30, 1996.
"CO-ADMINISTRATIVE AGENT" means Chase in its capacity as
Co-Administrative Agent with respect to this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL" means all property and interests in property now owned or
hereafter acquired by a Borrower or any of its Subsidiaries in or upon which a
security interest, lien or mortgage is granted to the Administrative Agent or
the Documentation and Collateral Agent, for the benefit of the Lenders, to
secure all of the Secured Obligations or, in the case of property now owned or
hereafter acquired by non-U.S. Borrowers, that portion of the Secured
Obligations arising from
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19
Advances made to non-U.S. Borrowers, whether under the Security Agreement, under
any of the other Collateral Documents or under any of the other Loan Documents.
"COLLATERAL DOCUMENTS" means all agreements, instruments and documents
executed in connection with this Agreement, including, without limitation the
Security Agreements, the Collection Account Agreements, the Pledge Agreements,
the Mortgages, the Intellectual Property Security Agreements and all other
security agreements, loan agreements, notes, guarantees, mortgages,
subordination agreements, pledges, powers of attorney, consents, assignments,
contracts, fee letters, notices, leases, financing statements and all other
written matter whether heretofore, now, or hereafter executed by or on behalf of
a Borrower or any Subsidiary of a
Borrower and delivered to the Administrative Agent or any of the Lenders,
together with all agreements and documents referred to therein or contemplated
thereby.
"COLLECTION ACCOUNT" means each lock-box and blocked depository account
maintained by AAS or Valley, subject to a Collection Account Agreement, for the
collection of Receivables and other proceeds of Collateral.
"COLLECTION ACCOUNT AGREEMENTS" means the written agreements among AAS
or Valley, the Documentation and Collateral Agent, and, as applicable, each of
the banks at which AAS maintains a Collection Account.
"COLLECTION ACCOUNT BLOCKAGE DATE" means the date, following the
occurrence of a Default on which the Documentation and Collateral Agent or the
Required Lenders, in the Documentation and Collateral Agent's or the Required
Lenders' sole discretion, instruct(s) any financial institution party to a
Collection Account Agreement as described in the applicable Collection Account
Agreement to remit, during the continuance of such Default, all amounts
deposited in the Collection Account to the Documentation and Collateral Agent or
as the Documentation and Collateral Agent shall direct.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMMITMENT" means, for each Lender, collectively, such Lender's
Revolving Loan Commitment, Tranche A Term Loan Commitment and Tranche B Term
Loan Commitment and for the Swing Line Lender, its Swing Line Loan Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of Exhibit I delivered to the Administrative Agent and each Lender by Holdings
pursuant to the provisions of this Agreement and covering, among other things,
its calculation of the Applicable Margins, Commitment Fee, Applicable Letter of
Credit Fee, its compliance with the financial covenants contained in Section 6.4
and certain other provisions of this Agreement.
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20
"CONSOLIDATED NET WORTH" is defined in Section 6.4(A) hereof.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability
of another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or
discounted or sold with recourse by that Person, or in respect of which that
Person is otherwise directly or indirectly liable, including Contractual
Obligations (contingent or otherwise) arising through any agreement to
purchase, repurchase, or otherwise acquire such Indebtedness, obligation or
liability or any security therefor, or to provide funds for the payment or
discharge thereof (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain solvency, assets, level of
income, or other financial condition, or to make payment other than for value
received.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as Holdings; (ii) a partnership or other
trade or business (whether or not incorporated) which is under common control
(within the meaning of Section 414(c) of the Code) with Holdings; and (iii) a
member of the same affiliated service group (within the meaning of Section
414(m) of the Code) as Holdings, any corporation described in clause (i) above
or any partnership or trade or business described in clause (ii) above.
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.10(D) hereof.
"CURE LOAN" is defined in Section 8.2 hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all
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21
cases which are not yet due or which are being contested in good faith
by appropriate proceedings and with respect to which adequate reserves
or other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
similar Liens imposed by law created in the ordinary course of business
for amounts not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance or other types of social security benefits or to
secure the performance of bids, tenders, sales, contracts (other than
for the repayment of borrowed money), surety, appeal and performance
bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of assets or property of any Borrower
taken as a whole or materially impair the use thereof in the operation
of the businesses taken as a whole, and (B) all Liens securing bonds to
stay judgments or in connection with appeals that do not secure at any
time an aggregate amount exceeding $500,000;
(iv) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of real property which do not interfere with
the ordinary conduct of the business of any Borrower or any Subsidiary
of any Borrower;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against any
Borrower or any Subsidiary of any Borrower which do not constitute a
Default under Section 7.1(h);
(vi) Liens arising from leases, subleases or licenses granted
to others which do not interfere in any material respect with the
business of any Borrower or any Subsidiary of any Borrower; and
(vii) any interest or title of the lessor in the property
subject to any operating lease entered into by any Borrower or any
Subsidiary of any Borrower in the ordinary course of business.
"DECISION PERIOD" is defined in Section 6.2(G) hereof.
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22
"DECISION RESERVE"at any time shall be the sum of (a) the Reinvestment
Reserve and (b) the Insurance Reserve.
"DEFAULT" means an event described in Article VII hereof.
"DOCUMENTATION AND COLLATERAL AGENT" means NBD in its capacity as
contractual representative for itself and the Lenders pursuant to Article X
hereof and any successor Documentation and Collateral Agent appointed pursuant
to Article X hereof.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent for such currency on the London market at 11:00 a.m.,
London time, two Business Days prior to the date on which such amount is to be
determined.
"EBITDA" is defined in Section 6.4(A) hereof.
"EFFECTIVE DATE" means August 5, 1997.
"ELIGIBLE CANADIAN INVENTORY" means Inventory of AAS Canada which is
held for sale or lease or furnished under any contract of service by AAS Canada
which is not rendered ineligible by the provisions set forth herein. Holdings
understands and agrees that the standards of ineligibility may be revised from
time to time by the Documentation and Collateral Agent in its reasonable credit
judgment (which credit judgment shall be exercised in a manner that is not
arbitrary or capricious and shall be exercised in a manner not inconsistent with
the manner in which the initial ineligibility standards were determined). The
following Inventory is ineligible and shall not be included in Eligible Canadian
Inventory: (i) (to the extent not provided for by reserves described in the
definition of the Gross Amount of Eligible Canadian Inventory) Inventory which
is obsolete, not in good condition, not either currently usable or currently
saleable in the ordinary course of AAS Canada's business or does not meet all
material standards imposed by any Governmental Authority having regulatory
authority over such item of Inventory, its use or its sale; (ii) Inventory which
the Documentation and Collateral Agent determines, in the exercise of its
reasonable discretion (which discretion shall not be exercised in a manner that
is arbitrary or capricious and shall be exercised in a manner not inconsistent
with the manner in which the initial ineligibility standards were determined),
to be unacceptable due to age, type, category and/or quantity; (iii) Inventory
consisting of packaging material and supplies; (iv) Inventory which (a) is
consigned to a third party for sale or (b) is on consignment from a third
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23
party to AAS Canada for sale; (v) Inventory which consists of goods in transit;
(vi) Inventory which is subject to a Lien in favor of any Person other than the
Documentation and Collateral Agent; (vii) Inventory with respect to which the
Documentation and Collateral Agent does not have a first and valid
fully-perfected security interest; (viii) Inventory which is not located on
premises owned by AAS Canada in Canada unless AAS Canada has entered into
arrangements satisfactory to the Documentation and Collateral Agent; (ix)
Inventory which is evidenced by a Receivable; and (x) Inventory which is not in
full conformity with the representations and warranties made by AAS Canada to
the Documentation and Collateral Agent with respect thereto whether contained in
this Agreement or any other agreement.
"ELIGIBLE DUTCH INVENTORY" means Inventory of Brink BV which is held
for sale or lease or furnished under any contract of service by Brink BV which
is not rendered ineligible by the provisions set forth herein. Holdings
understands and agrees that the standards of ineligibility may be revised from
time to time by the Documentation and Collateral Agent in its reasonable
credit judgment (which credit judgment shall be exercised in a manner that is
not arbitrary or capricious and shall be exercised in a manner not inconsistent
with the manner in which the initial ineligibility standards were determined).
The following Inventory is ineligible and shall not be included in Eligible
Dutch Inventory: (i) (to the extent not provided for by reserves described in
the definition of the Gross Amount of Eligible Dutch Inventory) Inventory which
is obsolete, not in good condition, not either currently usable or currently
saleable in the ordinary course of Brink BV's business or does not meet all
material standards imposed by any Governmental Authority having regulatory
authority over such item of Inventory, its use or its sale; (ii) Inventory which
the Documentation and Collateral Agent determines, in the exercise of its
reasonable discretion (which discretion shall not be exercised in a manner that
is arbitrary or capricious and shall be exercised in a manner not inconsistent
with the manner in which the initial ineligibility standards were determined),
to be unacceptable due to age, type, category and/or quantity; (iii) Inventory
consisting of packaging material and supplies; (iv) Inventory which (a) is
consigned to a third party for sale or (b) is on consignment from a third party
to Brink BV for sale; (v) Inventory which consists of goods in transit; (vi)
Inventory which is subject to a Lien in favor of any Person other than the
Documentation and Collateral Agent; (vii) Inventory with respect to which the
Documentation and Collateral Agent does not have a first and valid
fully-perfected security interest; (viii) Inventory which is not located on
premises owned by Brink BV in The Netherlands unless Brink BV has entered into
arrangements satisfactory to the Documentation and Collateral Agent; (ix)
Inventory which is evidenced by a Receivable; and (x) Inventory which is not in
full conformity with the representations and warranties made by Brink BV to the
Documentation and Collateral Agent with respect thereto whether contained in
this Agreement or any other agreement.
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"ELIGIBLE U.S. INVENTORY" means Inventory of AAS or Valley which is
held for sale or lease or furnished under any contract of service by AAS or
Valley which is not rendered ineligible by the provisions set forth herein. AAS
and Valley understand and agree that the standards of ineligibility may be
revised from time to time by the Documentation and Collateral Agent in its
reasonable credit judgment (which credit judgment shall be exercised in a manner
that is not arbitrary or capricious and shall be exercised in a manner not
inconsistent with the manner in which the initial ineligibility standards were
determined). The following Inventory is ineligible and shall not be included in
Eligible U.S. Inventory: (i) (to the extent not provided for by reserves
described in the definition of the Gross Amount of Eligible Inventory) Inventory
which is obsolete, not in good condition, not either currently usable or
currently saleable in the ordinary course of AAS's or Valley's business or does
not meet all material standards imposed by any Governmental Authority having
regulatory authority over such item of Inventory, its use or its sale; (ii)
Inventory which the Documentation and Collateral Agent determines, in the
exercise of its reasonable discretion (which discretion shall not be exercised
in a manner that is arbitrary or capricious and shall be exercised in a manner
not inconsistent with the manner in which the initial ineligibility standards
were determined), to be unacceptable due to age, type, category and/or quantity;
(iii) Inventory consisting of packaging material and supplies; (iv) Inventory
which (a) is consigned to a third party for sale or (b) is on consignment from a
third party to AAS or Valley for sale; (v) Inventory which has been held by AAS
or Valley for more than ninety (90) days (to the extent not provided
for by reserves described in the definition of the Gross Amount of Eligible
Inventory) to the extent that the value of such Inventory (valued as provided in
this Agreement) exceeds $500,000; (vi) Inventory which consists of goods in
transit; (vii) Inventory which is subject to a Lien in favor of any Person other
than the Documentation and Collateral Agent; (viii) Inventory with respect to
which the Documentation and Collateral Agent does not have a first and valid
fully-perfected security interest; (ix) Inventory which is not located either
(a) on premises owned by AAS or Valley in the United States listed on Schedule 2
to the applicable Security Agreement or (b) in other owned or leased premises,
warehouses or with bailees in the United States not listed on Schedule 2 to the
Security Agreement permitted to be established under the applicable Security
Agreement or established in connection with a Permitted Acquisition, in each
case in connection with which the Documentation and Collateral Agent shall have
received landlord, mortgagee, bailee and/or warehousemen's access and lien
waiver agreements, as applicable, in each case, if requested by the
Administrative Agent, in form and substance reasonably acceptable to the
Documentation and Collateral Agent (except with respect to Inventory located in
a warehouse in Auburn Hills, Michigan which, so long as Valley remains current
with respect to rent payments, will be treated as Eligible U.S. Inventory
subject to a reserve equal in amount to three months rent); (x) Inventory which
is evidenced by a Receivable; and (xi) Inventory which is not in full conformity
with the representations and warranties made by AAS or Valley to the
Documentation and Collateral Agent with respect thereto whether contained in
this Agreement or the applicable Security Agreement.
Without limiting the foregoing, (i) Inventory of AAS or Valley which is acquired
pursuant to a Permitted Acquisition shall be treated as Eligible Inventory only
if the Documentation and
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Collateral Agent and the Required Lenders, after concluding any due
diligence they reasonably deem necessary, shall be satisfied as to the condition
thereof and that such Inventory would not otherwise be ineligible under the
ineligibility standards set forth herein (including, without limitation, each of
perfection and priority of the Documentation and Collateral Agent's security
interests in such Inventory) and (ii) Inventory acquired pursuant to such
Permitted Acquisition may be deemed Eligible Inventory from and after such
Permitted Acquisition if the foregoing determinations have been made to the
Documentation and Collateral Agent's and the Required Lenders' satisfaction.
"ELIGIBLE CANADIAN RECEIVABLES" means Receivables created by AAS Canada
in the ordinary course of its business arising out of the sale of goods or
rendition of services by AAS Canada, which Receivables are not rendered
ineligible by the provisions set forth herein. Holdings understands and agrees
that the standards of ineligibility may be revised from time to time by the
Documentation and Collateral Agent in its reasonable credit judgment (which
credit judgment shall be exercised in a manner that is not arbitrary or
capricious and shall be exercised in a manner not inconsistent with the manner
in which the initial ineligibility standards were determined). The following
Receivables are ineligible and shall not be included in Eligible Canadian
Receivables:
(i) Receivables which remain unpaid ninety (90) days after the
date payment is due in accordance with the original applicable invoice;
(ii) all Receivables owing by a single Account Debtor
(including a Receivable which remains unpaid fewer than ninety (90)
days after the date of the original applicable invoice) if twenty-five
percent (25%) of the balance owing by such Account Debtor, calculated
without taking into account any credit balances of such Account Debtor,
remains unpaid one hundred and twenty (120) days after the date of the
original applicable invoice;
(iii) Receivables with respect to which the Account Debtor is
a director, officer, employee, Subsidiary or Affiliate (with the
percentage test for Affiliate set forth in the definition of Affiliate
being 15% for purposes of this clause (iii)) of any of the Borrowers;
(iv) Receivables with respect to which the Account Debtor is
(a) any Governmental Authority, or any department, agency or
instrumentality thereof;
(v) Receivables consisting of tooling and non-production
related Receivables and Receivables consisting of cancellation fees
unless such Receivables are evidenced by purchase orders or the
Documentation and Collateral Agent in its discretion elects to treat
such Receivables as eligible in which case such Receivables shall
thereafter be treated as eligible;
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26
(vi) Receivables with respect to which the Account Debtor has
(a) asserted a counterclaim, (b) a right of setoff or (c) a receivable
owing from AAS Canada but only to the extent of such counterclaim,
setoff or receivable;
(vii) Receivables for which the prospect of payment or
performance by the Account Debtor is or will be impaired as determined
by the Documentation and Collateral Agent in the exercise of its
reasonable credit judgment (which credit judgment shall not be
exercised in a manner that is arbitrary or capricious and shall be
exercised in a manner not inconsistent with the manner in which the
initial ineligibility standards were determined);
(viii) Receivables with respect to which the Documentation and
Collateral Agent does not have a first and valid fully perfected and
enforceable security interest;
(ix) Receivables with respect to which the Account Debtor is
the subject of bankruptcy or a similar insolvency proceeding or has
made an assignment for the benefit of creditors or whose assets have
been conveyed to a receiver, trustee or assignee for the benefit of
creditors;
(x) Receivables with respect to which the Account Debtor's
obligation to pay the Receivable is conditional upon the Account
Debtor's approval or is otherwise subject to any repurchase obligation
or return right, as with sales made on a ▇▇▇▇-and-hold, guaranteed
sale, sale-and-return, sale on approval (except with respect to
Receivables in connection with which Account Debtors are entitled to
return Inventory on the basis of the quality of such Inventory) or
consignment basis;
(xi) Receivables with respect to which the Account Debtor's
obligation does not constitute its legal, valid and binding obligation,
enforceable against it in accordance with its terms;
(xii) Receivables with respect to which AAS Canada has not yet
shipped the applicable goods, performed the applicable service or
issued the applicable invoice;
(xiii) Receivables with respect to which AAS Canada requires
cash on delivery;
(xiv) any Receivable which is not in conformity with the
representations and warranties made by AAS Canada to the Documentation
and Collateral Agent with respect thereto whether contained in this
Agreement or the applicable Security Agreement; and
(xv) Receivables in connection with which AAS Canada or any
other party to such Receivable, is in default in the performance or
observance of any of the terms thereof in any material respect.
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"ELIGIBLE DUTCH RECEIVABLES" means Receivables created by Brink in the
ordinary course of its business arising out of the sale of goods or rendition of
services by Brink, which Receivables are not rendered ineligible by the
provisions set forth herein. Holdings understands and agrees that the standards
of ineligibility may be revised from time to time by the Documentation and
Collateral Agent in its reasonable credit judgment (which credit judgment shall
be exercised in a manner that is not arbitrary or capricious and shall be
exercised in a manner not inconsistent with the manner in which the initial
ineligibility standards were determined). The following Receivables are
ineligible and shall not be included in Eligible Dutch Receivables:
(i) Receivables which remain unpaid ninety (90) days after the
date of the original applicable invoice;
(ii) all Receivables owing by a single Account Debtor
(including a Receivable which remains unpaid fewer than ninety (90)
days after the date of the original applicable invoice) if twenty-five
percent (25%) of the balance owing by such Account Debtor, calculated
without taking into account any credit balances of such Account Debtor,
remains unpaid one hundred and twenty (120) days after the date of the
original applicable invoice;
(iii) Receivables with respect to which the Account Debtor is
a director, officer, employee, Subsidiary or Affiliate (with the
percentage test for Affiliate set forth in the definition of Affiliate
being 15% for purposes of this clause (iii)) of any of the Borrowers;
(iv) Receivables with respect to which the Account Debtor is
(a) any Governmental Authority, or any department, agency or
instrumentality thereof;
(v) Receivables consisting of tooling and non-production
related Receivables and Receivables consisting of cancellation fees
unless such Receivables are evidenced by purchase orders or the
Documentation and Collateral Agent in its discretion elects to treat
such Receivables as eligible in which case such Receivables shall
thereafter be treated as eligible;
(vi) Receivables with respect to which the Account Debtor has
(a) asserted a counterclaim, (b) a right of setoff or (c) a receivable
owing from Brink but only to the extent of such counterclaim, setoff or
receivable;
(vii) Receivables for which the prospect of payment or
performance by the Account Debtor is or will be impaired as determined
by the Documentation and Collateral Agent in the exercise of its
reasonable credit judgment (which credit judgment shall not be
exercised in a manner that is arbitrary or capricious and shall be
exercised in a manner not inconsistent with the manner in which the
initial ineligibility standards were determined);
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(viii) Receivables with respect to which the Documentation and
Collateral Agent does not have a first and valid fully perfected and
enforceable security interest;
(ix) Receivables with respect to which the Account Debtor is
the subject of bankruptcy or a similar insolvency proceeding or has
made an assignment for the benefit of creditors or whose assets have
been conveyed to a receiver, trustee or assignee for the benefit of
creditors;
(x) Receivables with respect to which the Account Debtor's
obligation to pay the Receivable is conditional upon the Account
Debtor's approval or is otherwise subject to any repurchase obligation
or return right, as with sales made on a ▇▇▇▇-and-hold, guaranteed
sale, sale-and-return, sale on approval (except with respect to
Receivables in connection with which Account Debtors are entitled to
return Inventory on the basis of the quality of such Inventory) or
consignment basis;
(xi) Receivables with respect to which the Account Debtor's
obligation does not constitute its legal, valid and binding obligation,
enforceable against it in accordance with its terms;
(xii) Receivables with respect to which Brink has not yet
shipped the applicable goods, performed the applicable service or
issued the applicable invoice;
(xiii) Receivables with respect to which Brink requires cash
on delivery;
(xiv) any Receivable which is not in conformity with the
representations and warranties made by Brink to the Documentation and
Collateral Agent with respect thereto whether contained in this
Agreement or the applicable Security Agreement; and
(xv) Receivables in connection with which Brink or any other
party to such Receivable, is in default in the performance or
observance of any of the terms thereof in any material respect.
"ELIGIBLE U.S. RECEIVABLES" means Receivables created by AAS or Valley
in the ordinary course of its business arising out of the sale of goods or
rendition of services by AAS or Valley, which Receivables are not rendered
ineligible by the provisions set forth herein. AAS and Valley understand and
agree that the standards of ineligibility may be revised from time to time by
the Documentation and Collateral Agent in its reasonable credit judgment (which
credit judgment shall be exercised in a manner that is not arbitrary or
capricious and shall be exercised in a manner not inconsistent with the manner
in which the initial ineligibility standards were determined). The following
Receivables are ineligible and shall not be included in Eligible U.S.
Receivables:
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(i) Receivables which remain unpaid ninety (90) days after the
date of the original applicable invoice;
(ii) all Receivables owing by a single Account Debtor
(including a Receivable which remains unpaid fewer than ninety (90)
days after the date of the original applicable invoice) if twenty-five
percent (25%) of the balance owing by such Account Debtor, calculated
without taking into account any credit balances of such Account Debtor,
remains unpaid one hundred and twenty (120) days after the date of the
original applicable invoice;
(iii) Receivables with respect to which the Account Debtor is
a director, officer, employee, Subsidiary or Affiliate (with the
percentage test for Affiliate set forth in the definition of Affiliate
being 15% for purposes of this clause (iii)) of AAS or Valley or any of
the other Borrowers;
(iv) Receivables with respect to which the Account Debtor is
(a) any federal Governmental Authority, the United States of America,
or, in each case, any department, agency or instrumentality thereof,
unless with respect to any such Account, AAS or Valley has complied to
the Documentation and Collateral Agent's satisfaction with the
provisions of the Federal Assignment of Claims Act or other applicable
statutes, including, without limitation, executing and delivering to
Documentation and Collateral Agent all statements of assignment and/or
notification which are in form and substance acceptable to
Documentation and Collateral Agent and which are deemed necessary by
Documentation and Collateral Agent to effectuate the assignment to the
Documentation and Collateral Agent of such Accounts on behalf of the
Lenders or (b) any state or municipal Governmental Authority or any
agency or instrumentality thereof;
(v) Receivables consisting of tooling and non-production
related Receivables and Receivables consisting of cancellation fees
unless such Receivables are evidenced by purchase orders or the
Documentation and Collateral Agent in its discretion elects to treat
such Receivables as eligible in which case such Receivables shall
thereafter be treated as eligible;
(vi) Receivables not denominated in U.S. Dollars or Canadian
Dollars or with respect to which the Account Debtor is not a resident
of the United States or Quebec or one of the provinces of Canada which
has adopted the Personal Property Security Act unless the Account
Debtor has supplied AAS or Valley, as applicable, with an irrevocable
letter of credit, issued by a financial institution satisfactory to the
Documentation and Collateral Agent, sufficient to cover such Receivable
in form and substance satisfactory to the Documentation and Collateral
Agent;
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(vii) Receivables with respect to which the Account Debtor has
(a) asserted a counterclaim, (b) a right of setoff or (c) a receivable
owing from AAS or Valley, as applicable, but only to the extent of such
counterclaim, setoff or receivable;
(viii) Receivables for which the prospect of payment or
performance by the Account Debtor is or will be impaired as determined
by the Documentation and Collateral Agent in the exercise of its
reasonable credit judgment (which credit judgment shall not be
exercised in a manner that is arbitrary or capricious and shall be
exercised in a manner not inconsistent with the manner in which the
initial ineligibility standards were determined);
(ix) Receivables with respect to which the Documentation and
Collateral Agent does not have a first and valid fully perfected and
enforceable security interest;
(x) Receivables with respect to which the Account Debtor is
the subject of bankruptcy or a similar insolvency proceeding or has
made an assignment for the benefit of creditors or whose assets have
been conveyed to a receiver, trustee or assignee for the benefit of
creditors;
(xi) Receivables with respect to which the Account Debtor's
obligation to pay the Receivable is conditional upon the Account
Debtor's approval or is otherwise subject to any repurchase obligation
or return right, as with sales made on a ▇▇▇▇-and-hold, guaranteed
sale, sale-and-return, sale on approval (except with respect to
Receivables in connection with which Account Debtors are entitled to
return Inventory on the basis of the quality of such Inventory) or
consignment basis;
(xii) Receivables with respect to which the Account Debtor is
located in Minnesota (or any other jurisdiction which adopts a statute
or other requirement with respect to which any Person that obtains
business from within such jurisdiction or is otherwise subject to such
jurisdiction's tax law requiring such Person to file a Business
Activity Report or make any other required filings in a timely manner
in order to enforce its claims in such jurisdiction's courts or arising
under such jurisdiction's laws); provided, however, such Receivables
shall nonetheless be eligible if AAS or Valley, as applicable, has
filed a Business Activity Report (or other applicable report) with the
applicable state office or is qualified to do business in such
jurisdiction and, at the time the Receivable was created, was qualified
to do business in such jurisdiction or had on file with the applicable
state office a current Business Activity Report (or other applicable
report);
(xiii) Receivables with respect to which the Account Debtor's
obligation does not constitute its legal, valid and binding obligation,
enforceable against it in accordance with its terms;
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(xiv) Receivables with respect to which AAS or Valley, as
applicable, has not yet shipped the applicable goods, performed the
applicable service or issued the applicable invoice;
(xv) Receivables with respect to which AAS or Valley, as
applicable, requires cash on delivery;
(xvi) any Receivable which is not in conformity with the
representations and warranties made by AAS or Valley, as applicable, to
the Documentation and Collateral Agent with respect thereto whether
contained in this Agreement or the Security Agreement;
(xvii) Receivables in connection with which AAS or Valley, as
applicable, has not complied with all material requirements contained
in the charter and by-laws or other organizational or governing
documents of AAS or Valley, as applicable, and any law, rule or
regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon AAS
or Valley, as applicable, or any of its property or to which AAS or
Valley, as applicable, or any of its property is subject, including,
without limitation, all laws, rules, regulations and orders of any
Governmental Authority or judicial authority relating to truth in
lending, billing practices, fair credit reporting, equal credit
opportunity, debt collection practices and consumer debtor protection,
applicable to such Receivable (or any related contracts) or affecting
the collectibility of such Receivables; and
(xviii) Receivables in connection with which AAS or Valley, as
applicable, or any other party to such Receivable, is in default in the
performance or observance of any of the terms thereof in any material
respect.
Without limiting the foregoing, (i) Receivables of AAS or Valley, as applicable,
which are acquired pursuant to a Permitted Acquisition shall be treated as
Eligible Receivables only if the Documentation and Collateral Agent and the
Required Lenders, after concluding any due diligence they reasonably deem
necessary, shall be satisfied as to the quality and creditworthiness thereof and
that such Receivables would not otherwise be ineligible under the ineligibility
standards set forth herein (including, without limitation, lack of perfection
and priority of the Documentation and Collateral Agent's security interests in
such Receivables) but for the fact that they were acquired by AAS or Valley, as
applicable, outside of the ordinary course of business and (ii) Receivables
acquired pursuant to such Permitted Acquisition may be deemed Eligible
Receivables from and after such Permitted Acquisition if the foregoing
determinations have been made to the Documentation and Collateral Agent's and
the Required Lenders' satisfaction.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local laws or
regulations relating to or
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addressing pollution or protection of the environment, or protection of worker
health or safety, including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq., the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651
et seq., and the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Section 6901 et seq., in each case including any amendments thereto, any
successor statutes, and any regulations or guidance promulgated thereunder, and
any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such other currency at
11:00 a.m., London time, two Business Days prior to the date on which such
amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EUROCURRENCY BASE RATE" means, with respect to any Eurocurrency Rate
Advance for any specified Interest Period, either (i) the rate of interest per
annum equal to the rate for deposits in the applicable Agreed Currency in the
approximate amount of the pro rata share of the Administrative Agent of such
Eurocurrency Advance with a maturity approximately equal to such Interest Period
which appears on Telerate Page 3740 or Telerate Page 3750, as applicable, or, if
there is more than one such rate, the average of such rates rounded to the
nearest 1/100 of 1%, as of 11 a.m. (London time) two Business Days prior to the
first day of such Interest Period or (ii) if no such rate of interest appears on
Telerate Page 3740 or Telerate Page 3750, as applicable, for any specified
Interest Period, the rate at which deposits in the applicable Agreed Currency
are offered by the Administrative Agent to first-class banks in the London
interbank market at approximately 11 a.m. (London time) two Business Days prior
to the first day of such Interest Period, in the approximate amount of the pro
rata share of the Administrative Agent of such Eurocurrency Advance and having a
maturity approximately equal to such Interest Period. The terms "Telerate Page
3740" and "Telerate Page 3750" mean the display designated as "Page
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3740" and "Page 3750", as applicable, on the Associated Press-Dow ▇▇▇▇▇ Telerate
Service (or such other page as may replace Page 3740 or Page 3750, as
applicable, on the Associated Press- Dow ▇▇▇▇▇ Telerate Service or such other
service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
interest rate settlement rates for the relevant Agreed Currency). Any
Eurocurrency Base Rate determined on the basis of the rate displayed on Telerate
Page 3740 or Telerate Page 3750 in accordance with the foregoing provisions of
this subparagraph shall be subject to corrections, if any, made in such rate and
displayed by the Associated Press-Dow ▇▇▇▇▇ Telerate Service within one hour of
the time when such rate is first displayed by such service.
"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent shall mean,
for each of the Agreed Currencies, the office, branch or affiliate of the
Administrative Agent, specified as the "EUROCURRENCY PAYMENT OFFICE" for such
currency in Schedule I hereto or such other office, branch, affiliate or
correspondent bank of the Administrative Agent, as it may from time to time
specify to the Borrowers and each Lender as its Eurocurrency Payment Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Advance
for the relevant Interest Period, the sum of (a) the Eurocurrency Base Rate and
(b) the percentage determined in accordance with Section 2.8(b) to be the
Applicable Margin in connection with Eurocurrency Loans.
"EUROCURRENCY RATE ADVANCE" means an Advance which bears interest at
the Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurocurrency Rate.
"EXCESS CASH FLOW" means, for any Cash Flow Period, an amount equal to
Holdings' and its Subsidiaries' consolidated (i) EBITDA for such period plus or
minus (ii) the net reduction or increase, respectively, if any, in Working
Capital during such period, minus (iii) Tax Distributions for such period, minus
(iv) Capital Expenditures, whether paid in cash or accrued during such period,
minus (v) Interest Expense for such period, minus (vi) scheduled amortization of
the principal portion of the Term Loans and scheduled amortization of the
principal portion of all other Indebtedness of Holdings and its Subsidiaries
during such period, plus (vii) the amount of any extraordinary gain realized in
such period in connection with an Asset Sale to the extent deducted in
calculating EBITDA for such period and to the extent applied in such period as a
mandatory prepayment pursuant to Section 2.5(B)(i)(a).
"EXCLUDED EQUITY SALES" means the private placement and sale of equity
interests by Holdings, AAS or any Subsidiary: (i) the Net Cash Proceeds of which
are used to consummate a Permitted Acquisition or (ii) the aggregate Net Cash
Proceeds of which do not exceed $5,000,000
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(excluding amounts used as described in clause (i) above) since the Closing Date
or (iii) in a transaction which is an Excluded Transfer.
"EXCLUDED TRANSFER" means any transfer of the Capital Stock of a
Subsidiary of Holdings to Holdings or another Subsidiary of Holdings or any
issuance of the Capital Stock of any Subsidiary of Holdings that is a Borrower
or a Guarantor or a Subsidiary the Capital Stock of which is pledged pursuant to
one of the Pledge Agreements.
"FEDERAL FUNDS EFFECTIVE RATE" shall have the meaning assigned to that
term in the definition of Alternate Base Rate above.
"FEES" is defined in Section 6.4(A) hereof.
"FIXED CHARGE COVERAGE RATIO" is defined in Section 6.4(C) hereof.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of Holdings, any of its Subsidiaries or any members of
its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA which (i) is maintained or contributed to for the benefit
of employees of Holdings, any of its Subsidiaries or any of its ERISA
Affiliates, (ii) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA,
and (iii) under applicable local law, is required to be funded through a trust
or other funding vehicle.
"GOVERNMENTAL ACTS" is defined in Section 2.26(a) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GROSS AMOUNT OF ELIGIBLE CANADIAN INVENTORY" means the Dollar Amount
of the Canadian Dollar value of Eligible Canadian Inventory valued at the lower
of cost determined on a first-in-first-out basis (determined in accordance with
Agreement Accounting Principles, consistently applied) or market value less (i)
the value of reserves which have been recorded by AAS Canada with respect to
obsolete, slow-moving or excess Inventory and (ii) such other reserves as the
Documentation and Collateral Agent elects to establish in accordance with its
reasonable credit judgment (which credit judgment shall be exercised in a manner
that is not arbitrary or capricious and shall be exercised in a manner not
inconsistent with the manner in which the initial reserves were determined).
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"GROSS AMOUNT OF ELIGIBLE DUTCH INVENTORY" means the Dollar Amount of
the Dutch Guilder value of Eligible Dutch Inventory valued at the lower of cost
determined on a first-in- first-out basis (determined in accordance with
Agreement Accounting Principles, consistently applied) or market value less (i)
the value of reserves which have been recorded by Brink with respect to
obsolete, slow-moving or excess Inventory and (ii) such other reserves as the
Documentation and Collateral Agent elects to establish in accordance with its
reasonable credit judgment (which credit judgment shall be exercised in a manner
that is not arbitrary or capricious and shall be exercised in a manner not
inconsistent with the manner in which the initial reserves were determined).
"GROSS AMOUNT OF ELIGIBLE U.S. INVENTORY" means Eligible U.S. Inventory
valued at the lower of cost determined on a first-in-first-out basis (determined
in accordance with Agreement Accounting Principles, consistently applied) or
market value less (i) the value of reserves which have been recorded by AAS with
respect to obsolete, slow-moving or excess Inventory and (ii) such other
reserves as the Documentation and Collateral Agent elects to establish in
accordance with its reasonable credit judgment (which credit judgment shall be
exercised in a manner that is not arbitrary or capricious and shall be exercised
in a manner not inconsistent with the manner in which the initial reserves were
determined).
"GROSS AMOUNT OF ELIGIBLE CANADIAN RECEIVABLES" means the Dollar Amount
of the outstanding face amount in Canadian Dollars of Eligible Canadian
Receivables, determined in accordance with Agreement Accounting Principles,
consistently applied, less (i) all finance charges, late fees and other fees
that are unearned, (ii) the value of any accrual which has been recorded by AAS
Canada with respect to downward price adjustments, (iii) a warranty reserve in
an amount reasonably sufficient for purposes of meeting AAS Canada's warranty
obligations or warranty sharing obligations; and (iv) such other reserves as the
Documentation and Collateral Agent elects to establish in accordance with its
reasonable credit judgment (which credit judgment shall be exercised in a manner
that is not arbitrary or capricious and shall be exercised in a manner not
inconsistent with the manner in which the initial reserves were determined).
"GROSS AMOUNT OF ELIGIBLE DUTCH RECEIVABLES" means the Dollar Amount of
the outstanding face amount in Dutch Guilders of Eligible Dutch Receivables,
determined in accordance with Agreement Accounting Principles, consistently
applied, less (i) all finance charges, late fees and other fees that are
unearned, (ii) the value of any accrual which has been recorded by Brink with
respect to downward price adjustments, (iii) a warranty reserve in an amount
reasonably sufficient for purposes of meeting Brink's warranty obligations or
warranty sharing obligations; and (iv) such other reserves as the Documentation
and Collateral Agent elects to establish in accordance with its reasonable
credit judgment (which credit judgment shall be exercised in a manner that is
not arbitrary or capricious and shall be exercised in a manner not inconsistent
with the manner in which the initial reserves were determined).
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"GROSS AMOUNT OF ELIGIBLE U.S. RECEIVABLES" means the outstanding face
amount of Eligible U.S. Receivables, determined in accordance with Agreement
Accounting Principles, consistently applied, less (i) all finance charges, late
fees and other fees that are unearned, (ii) the value of any accrual which has
been recorded by AAS or Valley, as applicable, with respect to downward price
adjustments, (iii) a warranty reserve in an amount reasonably sufficient for
purposes of meeting the warranty obligations or warranty sharing obligations of
AAS or Valley, as applicable; and (iv) such other reserves as the Documentation
and Collateral Agent elects to establish in accordance with its reasonable
credit judgment (which credit judgment shall be exercised in a manner that is
not arbitrary or capricious and shall be exercised in a manner not inconsistent
with the manner in which the initial reserves were determined).
"GROSS NEGLIGENCE" means recklessness, the absence of the slightest
care or the complete disregard of consequences. Gross Negligence does not mean
the absence of ordinary care or diligence, or an inadvertent act or inadvertent
failure to act. If the term "gross negligence" is used with respect to the
Administrative Agent, the Documentation and Collateral Agent, any Arranger or
any Lender or any Indemnitee in any of the other Loan Documents, it shall have
the meaning set forth herein.
"GUARANTIES" means those certain Guaranties executed by Holdings, AAS,
Valley and Brink Acquisition with respect to all of the Secured Obligations and
Brink International with respect to that portion of the Secured Obligations
arising out of Advances made to Subsidiaries of Brink International.
"HIGH YIELD NOTE AGREEMENT" means the Indenture to be dated a date
occurring between July 31, 1997 and December 31, 1997 among Holdings and a
trustee acting on behalf of the note purchasers pursuant to which Holdings plans
to issue notes in the original principal amount of US$100,000,000.
"HOLDERS OF SECURED OBLIGATIONS" shall mean the holders of the Secured
Obligations from time to time and shall include their respective successors,
transferees and assigns.
"HOLDINGS" means AAS Holdings, LLC, a Delaware limited liability
company, and its successors and assigns, including a debtor-in-possession on
behalf of Holdings.
"INCOME TAX LIABILITIES" means with respect to any member or, in the
event such member is a flow-through entity, such direct or indirect owner or
owners of such member as is or are subject to income taxes on income of AAS,
Valley or Holdings for any calendar year, an amount determined as follows:
(i) with respect to any Tax Distribution to be made at a time
when no Default or Unmatured Default has occurred and is continuing,
determined by multiplying (a) such Person's allocable share of all
taxable income and gains of AAS, Valley or Holdings (as
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determined under Section 7 of each of the Operating Agreements of AAS,
Valley and Holdings) by (b) forty-four percent (44%); and
(ii) with respect to any Tax Distribution to be made after the
occurrence and during the continuance of a Default or Unmatured
Default, an amount equal to such Person's actual liabilities for U.S.
federal income taxes and for all relevant state and local income taxes
for jurisdictions located in the U.S. (taking into account the
deductibility of state and local taxes for federal income tax purposes
and determined based on the highest marginal income tax rates
applicable to any such member without taking into account such member's
actual taxable income or losses from other sources), however
denominated (together with any interest, penalties, additions to tax,
or additional amounts with respect thereto), imposed under applicable
tax law (i.e., reflecting all items and the amounts thereof in the
period properly applicable thereto for tax accounting purposes)
resulting to such member based upon its allocable share (as determined
under Section 7 of each of the Operating Agreements of AAS, Valley and
Holdings) of all taxable income and gains of AAS, Valley or Holdings
for such calendar year.
"INDEBTEDNESS" of any Person means (i) any indebtedness of such Person,
contingent or otherwise, (a) in respect of borrowed money including all
principal, interest, fees and expenses with respect thereto (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or (b) evidenced by bonds, notes, acceptances, debentures or
other instruments or letters of credit (or reimbursement obligations with
respect thereto, including, in the case of the Borrowers, Reimbursement
Obligations under the Letters of Credit) or representing the balance deferred
and unpaid of the purchase price of any property (including pursuant to
Capitalized Leases) or services, if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles (except that any
such balance that constitutes a trade payable and/or an accrued liability
arising in the ordinary course of business shall not be considered
Indebtedness); (ii) to the extent not otherwise included, (a) interest accruing
after the commencement of any bankruptcy, insolvency, receivership or similar
proceedings and other interest that would have accrued but for the commencement
of such proceedings, (b) any Capitalized Lease Obligations, (c) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from property now or hereafter owned or acquired by such Person, and
(d) Contingent Obligations (exclusive of whether such items would appear upon
such balance sheet). The amount of Indebtedness of any Person at any date shall
be without duplication (i) the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability of any
such Contingent Obligations at such date and (ii) in the case of Indebtedness of
others secured by a Lien to which the property or assets owned or held by such
Person is subject, the lesser of the fair market value at such date of any asset
subject to a Lien securing the Indebtedness of others and the amount of the
Indebtedness secured.
"INDEMNIFIED MATTERS" is defined in Section 9.7(B) hereof.
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"INDEMNITEES" is defined in Section 9.7(B) hereof.
"INSURANCE RESERVE" is defined in Section 6.2(G) hereof.
"INTELLECTUAL PROPERTY SECURITY AGREEMENTS" means (a) those certain
Patent Security Agreements, and (b) those certain Trademark Security Agreements
executed by AAS and Valley, respectively, in favor of the Documentation and
Collateral Agent for the benefit of the holders of Secured Obligations as
amended, restated or otherwise modified from time to time.
"INTEREST EXPENSE" is defined in Section 6.4(A) hereof.
"INTEREST EXPENSE COVERAGE RATIO" is defined in Section 6.4(B) hereof.
"INTEREST PERIOD" means, with respect to a Eurocurrency Rate Loan, a
period of one (1), two (2), three (3) or six (6) months commencing on a Business
Day selected by the applicable Borrower pursuant to this Agreement. Such
Interest Period shall end on (but exclude) the day which corresponds numerically
to such date one, two, three or six months thereafter; provided, however, that
if there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the last Business Day
of such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"INTEREST RATE AGREEMENTS" is defined in Section 6.3(R) hereof.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by AAS, Valley, AAS Canada or Brink which are held for sale
or lease, furnished under any contract of service or held as raw materials, work
in process or supplies, and all materials used or consumed in the business of
AAS, Valley, AAS Canada or Brink, and shall include such property the sale or
other disposition of which has given rise to Receivables and which has been
returned to or repossessed or stopped in transit by AAS, Valley, AAS Canada or
Brink.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of stock, partnership interest, ownership or
membership interest, notes, debentures or other securities, or of a beneficial
interest in stock, partnership interest, ownership or membership interest,
notes, debentures or other securities, issued by any other Person, (ii) any
purchase by that Person of all or substantially all of the assets of a business
conducted by another Person, and (iii) any loan, advance (other than deposits
with financial institutions available for withdrawal on demand, prepaid
expenses, accounts receivable, advances to employees and similar items made or
incurred in the ordinary course of business) or capital contribution by that
Person to any other
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Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING LENDER" means, as the context may require, (i) The Chase
Manhattan Bank, with respect to Letters of Credit issued by it pursuant to this
Agreement, (ii) NBD Bank, with respect to Letters of Credit issued by it
pursuant to this Agreement, (iii) Chase Manhattan Bank Delaware, with respect to
Letters of Credit issued by it pursuant to this Agreement, (iv) any other Lender
that becomes an Issuing Lender, pursuant to Section 2.21, with respect to
Letters of Credit issued by such Lender or (v) collectively, all the foregoing.
"L/C DRAFT" means a draft drawn on an Issuing Lender pursuant to a
Letter of Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in Section
2.22.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the amount then available for drawing under each of
the Letters of Credit, (ii) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the Issuing Lender, (iii) the aggregate outstanding amount of all Reimbursement
Obligations at such time and (iv) the aggregate face amount of all Letters of
Credit requested by any Borrower but not yet issued (unless the request for an
unissued Letter of Credit has been denied).
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement, including the Issuing Lenders and the Swing Line Lenders and
their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent.
"LETTER(S) OF CREDIT" means the letters of credit to be issued by one
of the Issuing Lenders pursuant to Section 2.21 hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, (i) with respect to a Lender, such Lender's portion of
any Advance made pursuant to Section 2.1 or Section 2.2, as applicable, (ii)
with respect to the Swing Line
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Lender, its Swing Line Loans and (iii) collectively all Term Loans and Revolving
Loans, whether made or continued as or converted to Base Rate Loans or
Eurocurrency Rate Loans and all Swing Line Loans.
"LOAN ACCOUNT" is defined in Section 2.15(F) hereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranties, the
Collateral Documents and all other documents, instruments and agreements
executed in connection therewith or contemplated thereby, including the letter
agreements regarding fees among the Administrative Agent, AAS and Holdings and
among Chase, NBD, the Arrangers, Holdings and AAS, in each case as the same may
be amended, restated or otherwise modified and in effect from time to time.
"MANAGEMENT" means those Persons listed on Schedule 1.1.5 under such
heading.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Holdings and its Subsidiaries taken as a whole, (b)
the ability of the Borrowers to perform their respective obligations under the
Loan Documents in any material respect, or (c) the ability of the Lenders, the
Administrative Agent or the Documentation and Collateral Agent to enforce in any
material respect the Obligations or their rights with respect to the Collateral.
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time: (i)
the lesser of (A) the Aggregate Revolving Loan Commitment at such time minus the
Dollar Amount of the outstanding principal balance of the Indebtedness of AAS
Canada to the Canadian Lenders with respect to the Four Million Canadian Dollar
(C$4,000,000.00) revolving credit facility provided by the Canadian Lenders to
AAS Canada and (B) the Borrowing Base at such time minus (ii) the amount of any
Decision Reserve in effect at such time.
"MORTGAGES" shall mean mortgages, deeds of trust, collateral
assignments of beneficial interest, leasehold mortgages and/or leasehold deeds
of trust of even date herewith executed by any U.S. Borrower in favor of the
Documentation and Collateral Agent for the benefit of the Holders of Secured
Obligations as amended, restated or otherwise modified from time to time and any
other mortgage executed by any Subsidiary of Brink International securing
Advances made to Brink International or Subsidiaries of Brink International.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either Holdings, AAS, Valley or any member of the
Controlled Group.
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"NBD" means NBD Bank, in its individual capacity.
"NET CASH PROCEEDS" means, with respect to any Asset Sale of any
Person, (a) cash (freely convertible into U.S. Dollars) received by such Person
or any Subsidiary of such Person from such Asset Sale (including cash received
as consideration for the assumption or incurrence of liabilities incurred in
connection with or in anticipation of such Asset Sale), after (i) provision for
all income or other taxes measured by or resulting from such Asset Sale, (ii)
payment of all brokerage commissions and other fees and expenses related to such
Asset Sale, (iii) all amounts used to repay Indebtedness secured by a Lien on
any asset disposed of in such Asset Sale or which is or may be required (by the
express terms of the instrument governing such Indebtedness) to be repaid in
connection with such Asset Sale (including payments made to obtain or avoid the
need for the consent of any holder of such Indebtedness), and (iv) deduction of
appropriate amounts to be provided by such Person or a Subsidiary of such Person
as a reserve, in accordance with Agreement Accounting Principles, against any
liabilities associated with the assets sold or disposed of in such Asset Sale
and retained by such Person or a Subsidiary of such Person after such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale; and (b) cash payments in respect of any Indebtedness, Capital
Stock, ownership or membership interest or other consideration received by such
Person or any Subsidiary of such Person from such Asset Sale upon receipt of
such cash payments by such Person or such Subsidiary.
"NET INCOME" is defined in Section 6.4(A) hereof.
"NON PRO RATA LOAN" is defined in Section 8.2 hereof.
"NOMADIC SPORTS PURCHASE" means the purchase by AAS Canada of certain
assets and stock for a purchase price not to exceed in the aggregate
C$2,000,000.
"NOTES" means the Revolving Notes, the Term Notes and the Swing Line
Loan Note.
"NOTICE OF ASSIGNMENT" is defined in Section 12.3(B) hereof.
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by any of the Borrowers to the
Administrative Agent, the Documentation and Collateral Agent, either of the
Arrangers, any Lenders, the Issuing Lenders, the Swing Line Lender, any
Affiliate of any of the foregoing or any Indemnitee, of any kind or nature,
present or future, arising under this Agreement, the Notes, the Collateral
Documents, any other Loan Document, whether or not evidenced by any note,
guaranty or other instrument, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty, indemnification, or
in any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees,
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attorneys' fees and disbursements, paralegals' fees (in each case
whether or not allowed), and any other sum chargeable to any of the Borrowers
under this Agreement or any other Loan Document.
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in Section 12.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each March, June,
September and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in Section 6.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Borrowers and all other Subsidiaries of Holdings identified
as such on Schedule 1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the
Borrowers and all other Subsidiaries of Holdings identified as such on Schedule
1.1.2 to this Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrowers
and all other Subsidiaries of Holdings identified as such on Schedule 1.1.3 to
this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrowers
or all other Subsidiaries of Holdings identified as such on Schedule 1.1.4 to
this Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in Section
6.3(A)(ii) hereof.
"PERMITTED SUBORDINATED INDEBTEDNESS" means (a) Indebtedness evidenced
by the Subordinated Notes in an outstanding principal amount not at any time
exceeding $20,000,000, plus interest, fees and expenses and any other amounts
other than principal provided for under the Subordinated Note Agreement in
connection therewith, together with interest thereon; (b) Indebtedness evidenced
by substitute subordinated notes delivered upon the registration of the transfer
or exchange for or in lieu of such Subordinated Notes as provided in the
Subordinated Note Agreement; (c) Indebtedness evidenced by the Seller Note; (d)
Indebtedness evidenced by the Subordinated Notes in an outstanding principal
amount not at any time exceeding $100,000,000 issued pursuant to the High Yield
Note Agreement; (e) Indebtedness evidenced by the Subordinated Notes in an
outstanding principal amount not exceeding $20,000,000 issued pursuant to the
Supplemental Subordinated Note Agreement; and (e) other Subordinated
Indebtedness permitted pursuant to Section 6.3(A)(d)
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"PERSON" means any natural person, corporation, firm, company, joint
venture, partnership, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Borrower or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENTS" means (i) that certain Pledge Agreement executed by
Holdings in favor of the Documentation and Collateral Agent for the benefit of
the Holders of Secured Obligations to secure payment of the Secured Obligations,
as amended, restated or otherwise modified from time to time; (ii) that certain
Pledge Agreement executed by CB Capital in favor of the Documentation and
Collateral Agent for the benefit of the Holders of Secured Obligations to secure
payment of the Secured Obligations, as amended, restated or otherwise modified
from time to time; (iii) that certain Pledge Agreement executed by Brink
International in favor of the Documentation and Collateral Agent for the benefit
of the Holders of Secured Obligations pledging 65% of the Capital Stock of Brink
to secure payment of the Secured Obligations and (iv) any other pledge
agreements executed by Brink Acquisition and non-U.S. Subsidiaries of Holdings
in favor of the Documentation and Collateral Agent for the benefit of the
Holders of Secured Obligations pledging the Capital Stock of certain non-U.S.
Subsidiaries of Holdings to secure payment of Advances made to non-U.S.
Subsidiaries of Holdings.
"PRO RATA SHARE" means, with respect to any Lender, (i) at any time
prior to the Effective Date, the percentage obtained by dividing (A) such
Lender's Commitments at such time (in each case, as adjusted from time to time
in accordance with the provisions of this Agreement) by (B) the sum of the
Aggregate Term Loan Commitments and the Aggregate Revolving Loan Commitments at
such time and (ii) at any time after the Effective Date, the percentage obtained
by dividing (A) the sum of such Lender's Term Loans and Revolving Loan
Commitment at such time (in each case, as adjusted from time to time in
accordance with the provisions of this Agreement) by (B) the sum of the
aggregate amount of all of the Term Loans and the Aggregate Revolving Loan
Commitment at such time; provided, however, if all of the Commitments are
terminated pursuant to the terms of this Agreement, then "Pro Rata Share" means
the percentage obtained by dividing (x) the sum of such Lender's Term Loans and
Revolving Loans by (y) the aggregate amount of all Term Loans and Revolving
Loans.
"PURCHASERS" is defined in Section 12.3(A) hereof.
"RATE HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
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parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"RATE OPTION" means the Eurocurrency Rate or the Base Rate.
"RECEIVABLE(S)" means and includes all of AAS's, Valley's, AAS Canada's
or Brink's presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of AAS, Valley, AAS
Canada or Brink to payment for goods sold or leased or for services rendered
(except those evidenced by instruments or chattel paper), whether or not they
have been earned by performance, and all rights in any merchandise or goods
which any of the same may represent, and all rights, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
"REGISTER" is defined in Section 12.3(C) hereof.
"REGULATION G" means Regulation G of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by nonbank, nonbroker lenders for the purpose of purchasing
or carrying margin stock (as defined therein).
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying Margin
Stock applicable to member banks of the Federal Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 2.23 hereof.
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"REINVESTMENT PERIOD" is defined in Section 2.5(B)(i)(f) hereof.
"REINVESTMENT RESERVE" is defined in Section 2.5(B)(i)(f) hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" is defined in Section 6.4(A) hereof.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days after
such event occurs, provided, however, that a failure to meet the minimum funding
standards of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than fifty percent (50%); provided, however, that, if any
of the Lenders shall have failed to fund its Pro Rata Share of any Revolving
Loan requested by the Borrower which such Lenders are obligated to fund under
the terms of this Agreement and any such failure has not been cured, then for so
long as such failure continues, "REQUIRED LENDERS" means Lenders (excluding all
Lenders whose failure to fund their respective Pro Rata Shares of such Revolving
Loans have not been so cured) whose Pro Rata Shares represent greater than fifty
percent (50%) of the aggregate Pro Rata Shares of such Lenders; provided,
further, however, that, if the Commitments have been terminated pursuant to the
terms of this Agreement, "REQUIRED LENDERS" means Lenders (without regard to
such Lenders' performance of their respective obligations hereunder) whose
aggregate ratable shares (stated as a percentage) of the aggregate outstanding
principal balance of all Loans and L/C Obligations are greater than fifty
percent (50%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations G, T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit or
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environmental, labor, employment, occupational safety or health law,
rule or regulation, including Environmental, Health or Safety Requirements of
Law.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any ownership, membership or
other equity interest in Holdings now or hereafter outstanding, except
a dividend payable solely in additional interests of the same type, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any ownership, membership or other
equity interest in Holdings or any such interests or shares of any class of
Capital Stock of Holdings now or hereafter outstanding, (iii) any payment or
prepayment of principal of, premium, if any, or interest, fees or other charges
on or with respect to, and any redemption, purchase, retirement, defeasance,
sinking fund or similar payment and any claim for rescission with respect to any
Permitted Subordinated Indebtedness, (iv) any payment made to redeem, purchase,
repurchase or retire, or to obtain the surrender of, any outstanding options or
other rights to acquire any ownership, membership or other equity interests in
Holdings, (v) any payment of a claim for the rescission of the purchase or sale
of, or for material damages arising from the purchase or sale of any Permitted
Subordinated Indebtedness or any ownership, membership or other equity interests
in Holdings or of a claim for reimbursement, indemnification or contribution
arising out of or related to any such claim for damages or rescission and (vi)
any payment of management fees (or other fees of a similar nature) by Holdings
to CB Capital, any holder of ownership, membership or other equity interests in
Holdings or any member of management of Holdings or their Affiliates.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Maximum Revolving Credit Amount at such time exceeds the
Revolving Credit Obligations at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Revolving Loans at such time,
plus (ii) the L/C Obligations at such time plus (iii) the outstanding principal
amount of the Swing Line Loans at such time.
"REVOLVING LOAN" is defined in Section 2.2.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Letters of
Credit not exceeding the amount set forth on Exhibit B to this Agreement
opposite its name thereon under the heading "Revolving Loan Commitment" or the
signature page of the Assignment and Acceptance by which it became a Lender, as
such amount may be modified from time to time pursuant to the terms of this
Agreement or to give effect to any applicable Assignment and Acceptance.
"REVOLVING NOTE" means a promissory note, in substantially the form of
Exhibit C hereto, duly executed by a Borrower and payable to the order of a
Lender in the amount of its Revolving
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Loan Commitment, including any amendment, restatement modification, renewal or
replacement of such Revolving Note.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 3.2 hereof.
"SECURED OBLIGATIONS" means, collectively, (i) the Obligations, (ii)
all Rate Hedging Obligations owing to one or more of the Lenders and (iii) the
obligations of Holdings and AAS under guaranties of the Indebtedness of AAS
Canada owed to the Canadian Lenders.
"SECURITY AGREEMENTS" means those certain Security Agreements executed
by AAS, Holdings, Valley and Brink Acquisition, respectively, in favor of the
Documentation and Collateral Agent for the benefit of the Holders of Secured
Obligations as amended, restated or otherwise modified from time to time.
"SELLER" means Valley Industries, Inc.
"SELLER NOTE" means that certain Amended and Restated Note issued by
Holdings to the Seller in the principal amount of Twelve Million Five Hundred
Thousand Dutch Guilders (NLG 12,500,000).
"SINGLE EMPLOYER PLAN" means a Plan maintained by AAS or any member of
the Controlled Group for employees of AAS, Valley or any member of the
Controlled Group.
"SOLVENT" shall mean, when used with respect to any Person, that at the
time of determination:
(i) the fair value of its assets (both at fair valuation and
at present fair saleable value) is equal to or in excess of the total
amount of its liabilities, including, without limitation, contingent
liabilities; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SUBORDINATED INDEBTEDNESS" means the Indebtedness evidenced by the
Subordinated Notes and the Seller Note and other Permitted Subordinated
Indebtedness.
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"SUBORDINATED NOTE AGREEMENT" means the Senior Subordinated Note
Purchase Agreement dated as of October 30, 1996 among Holdings, and CB Capital
and International Mezzanine Capital BV, as amended by Amendment No. 1 dated July
2, 1997 and Amendment No. 2 dated as of August 5, 1997.
"SUBORDINATED NOTES" means (i) the Senior Subordinated Promissory Notes
issued by Holdings pursuant to the Subordinated Note Agreement, (ii) any notes
issued by Holdings pursuant to the High Yield Note Agreement and (iii) any notes
issued by Holdings pursuant to the Supplemental Subordinated Note Agreement.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any company, partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a direct
or indirect Subsidiary of Holdings.
"SUPPLEMENTAL SUBORDINATED NOTE AGREEMENT" means the Senior
Subordinated Note Purchase Agreement to be dated a date occurring between July
31, 1997 and December 31, 1997 among Holdings and one or more note purchasers or
a trustee acting on their behalf pursuant to which Holdings plans to issue
subordinated notes in an original principal amount sufficient to generate
proceeds available to prepay the Loans of not less than US$20,000,000.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Lenders
to make Swing Line Loans up to a maximum principal amount of $2,000,000 in the
aggregate at any one time outstanding.
"SWING LINE LENDER" means Chase, NBD and any other Lender that elects
to be a Swing Line Lender.
"SWING LINE LOAN" means a loan made available to any of the Borrowers
by the Swing Line Lender pursuant to Section 2.3.
"SWING LINE LOAN NOTE" means a Note in substantially the form of
Exhibit E hereto duly executed by the applicable Borrower and payable to the
order of each Swing Line Lender in the amount of its Swing Line Commitment.
"SYNDICATION AGENT" means Chase in its capacity as Syndication Agent
with respect to this Agreement.
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"TAX DISTRIBUTION" means, as of the time of determination thereof, any
distribution by AAS, Valley or Holdings to members of AAS, Valley or Holdings
(or in each case, if such member is a flow-through entity, such direct or
indirect owner or owners of such member as is or are subject to income taxes on
income of AAS, Valley or Holdings) pursuant to the provisions of Section
6.3(F)(i), which (i) with respect to quarterly estimated tax payments due in
each calendar year shall be equal to twenty-five percent (25%) of the relevant
member's Income Tax Liabilities for such calendar year as estimated in writing
by the chief financial officer of Holdings and (ii) with respect to tax
payments to be made with income tax returns filed for a full calendar year or
with respect to adjustments to such returns imposed by the IRS or other taxing
authority, shall be equal to the Income Tax Liabilities of such member for such
calendar year minus the aggregate amount distributed to such member for such
calendar year as provided in clause (i) above. In the event the amount
determined under clause (ii) is a negative amount, the amount of any
distributions to the relevant member in the succeeding calendar year (or, if
necessary, any subsequent calendar years) shall be reduced by such negative
amount.
"TAXES" is defined in Section 2.15(E)(i) hereof.
"TERMINATION DATE" means the earlier of (a) October 30, 2003, (b) the
date of termination of the Commitments pursuant to Section 2.6 or Section 8.1
and (c) the date of the payment in full of the Tranche A Term Loans.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of AAS, Valley or any member of the Controlled
Group from a Benefit Plan during a plan year in which AAS, Valley or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of AAS, Valley or any member of the Controlled Group; (iii)
the imposition of an obligation on AAS, Valley or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; (v) any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of AAS, Valley or any member of the Controlled Group from a
Multiemployer Plan.
"TERM LOANS" means, collectively, the Tranche A Term Loans and the
Tranche B Term Loans.
"TRANCHE A PRO RATA SHARE" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the numerator of
which shall be the then aggregate amount of such Lender's Revolving Credit
Commitment plus the outstanding principal balance of such Lender's Tranche A
Term Loans and the denominator of which shall be the then aggregate
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amount of all Revolving Credit Commitments and the outstanding principal balance
of the Tranche A Term Loans.
"TRANCHE A TERM LOAN" is defined in Section 2.1(a) hereof.
"TRANCHE A TERM LOAN COMMITMENT" means, for each Lender, the obligation
of such Lender to make its Tranche A Term Loan pursuant to the terms and
conditions of this Agreement, and which shall not exceed the principal amount
set forth on Exhibit B to this Agreement opposite its name thereon under the
heading "Tranche A Term Loan Commitment", as such amount may be modified from
time to time pursuant to the terms hereof.
"TRANCHE A TERM LOAN LENDER" means any Lender with a Tranche A Term
Loan Commitment.
"TRANCHE A TERM LOAN TERMINATION DATE" means the earlier of (a) October
30, 2003 and (b) the date of termination of the Revolving Loan Commitments
pursuant to Section 2.6 or Section 8.1.
"TRANCHE A TERM NOTE" means a promissory note, in substantially the
form of Exhibit D- 1 hereto, duly executed by the applicable Borrower and
payable to the order of a Lender in the amount of its Tranche A Term Loan
Commitment, including any amendment, restatement, modification, renewal or
replacement of such Tranche A Term Note.
"TRANCHE B PRO RATA SHARE" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the numerator of
which shall be the then outstanding principal balance of such Lender's Tranche B
Term Loans and the denominator of which shall be the then outstanding principal
balance of all Tranche B Term Loans.
"TRANCHE B TERM LOAN" is defined in Section 2.1(b) hereof.
"TRANCHE B TERM LOAN COMMITMENT" means, for each Lender, the obligation
of such Lender to make its Tranche B Term Loan pursuant to the terms and
conditions of this Agreement, and which shall not exceed the principal amount
set forth on Exhibit B to this Agreement opposite its name thereon under the
heading "Tranche B Term Loan Commitment", as such amount may be modified from
time to time pursuant to the terms hereof.
"TRANCHE B TERM LOAN LENDER" means any Lender with a Tranche B Term
Loan Commitment.
"TRANCHE B TERM LOAN TERMINATION DATE" means October 30, 2004.
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"TRANCHE B TERM NOTE" means a promissory note, in substantially the
form of Exhibit D- 2 hereto, duly executed by the applicable Borrower and
payable to the order of a Lender in the amount of its Tranche B Term Loan
Commitment, including any amendment, restatement, modification, renewal or
replacement of such Tranche B Term Note.
"TRANSACTION COSTS" means the fees, costs and expenses payable by the
Borrowers in connection with the execution, delivery and performance of the
Transaction Documents and the consummation of the Valley Acquisition.
"TRANSACTION DOCUMENTS" means the Loan Documents, the Subordinated Note
Agreement and the Acquisition Documents.
"TRANSFEREE" is defined in Section 12.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Base Rate Loan
or a Eurocurrency Rate Loan.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"U.S. BORROWING BASE" means, as of any date of calculation, an amount,
as set forth on the most current Borrowing Base Certificate delivered to the
Administrative Agent, equal to the sum of (i) eighty-five percent (85%) of the
Gross Amount of Eligible U.S. Receivables plus (ii) the lesser of (A)
$10,000,000 and (B) fifty percent (50%) of the Gross Amount of Eligible U.S.
Inventory.
"VALLEY" means Valley Industries, LLC, a Delaware limited liability
company, and its successors and assigns, including a debtor-in-possession on
behalf of Valley.
"VALLEY ACQUISITION" means the acquisition of substantially all of the
assets of Valley Industries, Inc. by Valley on the terms and conditions set
forth in that certain Asset Purchase Agreement ("ACQUISITION AGREEMENT") dated
as of August 5, 1997 by and among Valley, Seller and certain other parties
substantially in the form attached as Exhibit J hereto.
"WORKING CAPITAL" means, as at any date of determination, the excess,
if any, of (i) Holding's consolidated current assets, except cash and Cash
Equivalents, over (ii) Holdings' consolidated current liabilities, except
current maturities of long-term debt and Revolving Credit Obligations as of such
date and all accrued interest as of such date.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically
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defined herein shall have the meanings customarily given them in
accordance with generally accepted accounting principles in existence as of the
date hereof.
1.2 Supplemental Disclosure. At any time at the request of the
Administrative Agent and at such additional times as Holdings determines,
Holdings shall supplement each schedule or representation herein or in the other
Loan Documents with respect to any matter hereafter arising which, if existing
or occurring at the date of this Agreement, would have been required to be set
forth or described in such schedule or as an exception to such representation or
which is necessary to correct any information in such schedule or representation
which has been rendered inaccurate thereby. If any such supplement to such
schedule or representation discloses the existence or occurrence of events,
facts or circumstances which are restricted or prohibited by the terms of this
Agreement or any other Loan Documents, such supplement to such schedule or
representation shall not be deemed an amendment thereof unless expressly
consented to in writing by Administrative Agent and the Required Lenders, and no
such amendments, except as the same may be consented to in a writing which
expressly includes a waiver, shall be or be deemed a waiver by the
Administrative Agent or any Lender of any Default disclosed therein.
ARTICLE II: THE CREDITS
2.1. Term Loans. (a) Amount of Tranche A Term Loans. Subject to the
terms and conditions set forth in this Agreement, each Tranche A Term Loan
Lender on the Effective Date severally and not jointly agrees to make (or, to
the extent previously made, re-evidence) a term loan or loans, in one or more
Agreed Currencies, to one or more of the Borrowers in an aggregate Dollar Amount
at any time outstanding not to exceed such Lender's Tranche A Term Loan
Commitment (each individually, a "TRANCHE A TERM LOAN" and, collectively, the
"TRANCHE A TERM LOANS"). All Tranche A Term Loans shall be made or re-evidenced
by the Lenders on or after the Effective Date simultaneously and proportionately
to their respective Tranche A Pro Rata Shares, it being understood that no
Tranche A Term Loan Lender shall be responsible for any failure by any other
Tranche A Term Loan Lender to perform its obligation to make or re- evidence any
Tranche A Term Loan hereunder nor shall the Tranche A Term Loan Commitment of
any Lender be increased or decreased as a result of any such failure.
(b) Amount of Tranche B Term Loans. Subject to the terms and conditions
set forth in this Agreement, each Tranche B Term Loan Lender on the Effective
Date severally and not jointly agrees to make a term loan or loans, in Dollars,
to one or more of the Borrowers in an aggregate amount at any time outstanding
not to exceed such Lender's Tranche B Term Loan Commitment (each individually, a
"TRANCHE B TERM LOAN" and, collectively, the "TRANCHE B TERM LOANS"). All
Tranche B Term Loans shall be made by the Lenders on or after the Effective Date
simultaneously and proportionately to their respective Tranche B Pro Rata
Shares, it being understood that no Tranche B Term Loan Lender shall be
responsible for any failure by any other Tranche B Term Loan Lender to perform
its obligation to make any Tranche B Term Loan
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hereunder nor shall the Tranche B Term Loan Commitment of any Lender be
increased or decreased as a result of any such failure.
(c) Borrowing Notice. The applicable Borrower shall deliver to the
Administrative Agent a Borrowing Notice, signed by an
Authorized Officer, on or after the Effective Date. Such Borrowing Notice shall
specify (i) the aggregate amount of the Tranche A Term Loans and Tranche B Term
Loans requested which shall be $60,982,000 and $55,000,000, respectively, on the
Effective Date and (ii) instructions for the disbursement of the proceeds of
such Term Loans. The Term Loans shall initially be Base Rate Loans and
thereafter may be continued as Base Rate Loans or converted into Eurocurrency
Rate Loans in the manner provided in Section 2.10 and subject to
the other conditions and limitations therein set forth and set forth in this
Article II. Any Borrowing Notice given pursuant to this Section
2.1(b) shall be irrevocable.
(d) Making of Term Loans. Promptly after receipt of the Borrowing
Notice under Section 2.1(c) in respect of any Term Loans, the Administrative
Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission, of the proposed Advance. Each Lender shall deposit an amount equal
to its Tranche A Pro Rata Share of such Tranche A Term Loans and its Tranche B
Pro Rata Share of such Tranche B Term Loans with the Administrative Agent at its
office (i) in Detroit, Michigan in immediately available funds with respect to
any Advance denominated in Dollars and (ii) in the Administrative Agent's
Eurocurrency Payment Office in immediately available funds with respect to any
Advance denominated in an Agreed Currency other than Dollars, in each case, on
the Effective Date or, if thereafter, on the date specified in the Borrowing
Notice. Subject to the fulfillment of the conditions precedent set forth in
Sections 4.1 and 4.2, the Administrative Agent shall make the proceeds of such
amounts received by it available to the applicable Borrower at the
Administrative Agent's office in Detroit, Michigan on the date specified and
shall disburse such proceeds in accordance with the disbursement instructions
set forth in such Borrowing Notice. The failure of any Lender to deposit the
amount described above with the Administrative Agent on or after the Closing
Date shall not relieve any other Lender of its obligations hereunder to make
such Term Loan.
(e) Repayment of the Tranche A Term Loans. (i) The Tranche A Term Loans
shall be repaid by the Borrowers (it being understood that each non-U.S.
Borrower shall be liable only to repay Loans made to such Borrower and certain
other non-U.S. Borrowers) in twenty-five (25) consecutive quarterly installments
payable on the last day of each calendar quarter commencing September 30, 1997
and continuing thereafter until the Tranche A Term Loan Termination Date, and
the Tranche A Term Loans shall be permanently reduced by the amount of each
installment on the date payment thereof is required to be made hereunder. The
principal amount of the installments may be paid by any or all of the Borrowers
at their discretion provided that each of the quarterly installments shall be in
the aggregate amounts set forth below:
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INSTALLMENT DATE INSTALLMENT AMOUNT
---------------- ------------------
September 30, 1997 $1,500,000
December 31, 1997 $1,500,000
March 31, 1998 $1,500,000
June 30, 1998 $1,500,000
September 30, 1998 $1,500,000
December 31, 1998 $1,875,000
March 31, 1999 $1,875,000
June 30, 1999 $1,875,000
September 30, 1999 $1,875,000
December 31, 1999 $2,500,000
March 31, 2000 $2,500,000
June 30, 2000 $2,500,000
September 30, 2000 $2,500,000
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
December 31, 2002 $3,000,000
March 31, 2003 $3,000,000
June 30, 2003 $3,000,000
October 30, 2003 $2,982,000
Notwithstanding the foregoing, the final installment shall be in the amount of
the then outstanding principal balance of the Tranche A Term Loans. In addition,
the then outstanding principal balance of the Tranche A Term Loans, if any,
shall be due and payable on the Tranche A Term Loan Termination Date. No
installment of any Tranche A Term Loan shall be reborrowed once repaid, except
that the initial Tranche A Term Loans extended or re-evidenced on the Effective
Date may, to the extent they have not been repaid, be refinanced with Tranche A
Term Loans made subsequently to Brink International or one of the other
Borrowers.
(ii) In addition to the scheduled payments on the Tranche A Term Loans,
the (a) Borrowers may make the voluntary prepayments described in Section 2.5(A)
for credit against the scheduled payments on the Tranche A Term Loans pursuant
to Section 2.5(A) and (b) Holdings
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shall make or cause to be made the mandatory prepayments prescribed in Section
2.5(B), for credit against such scheduled payments on the Tranche A Term Loans
pursuant to Section 2.5(B).
(f) Repayment of the Tranche B Term Loans. (i) The Tranche B Term Loans
shall be repaid by the Borrowers (it being understood that each non-U.S.
Borrower shall be liable only to repay Loans made to such Borrower and certain
other non-U.S. Borrowers) in twenty-nine (29) consecutive quarterly installments
payable on the last day of each calendar quarter commencing September 30, 1997
and continuing thereafter until the Tranche B Term Loan Termination Date, and
the Tranche B Term Loans shall be permanently reduced by the amount of each
installment on the date payment thereof is required to be made hereunder. The
principal amount of the installments may be paid by any or all of the Borrowers
at their discretion provided that each of the quarterly installments shall be in
the aggregate amounts set forth below:
INSTALLMENT DATE INSTALLMENT AMOUNT
---------------- ------------------
September 30, 1997 $250,000
December 31, 1997 $250,000
March 31, 1998 $250,000
June 30, 1998 $250,000
September 30, 1998 $250,000
December 31, 1998 $250,000
March 31, 1999 $250,000
June 30, 1999 $250,000
September 30, 1999 $250,000
December 31, 1999 $250,000
March 31, 2000 $250,000
June 30, 2000 $250,000
September 30, 2000 $250,000
December 31, 2000 $250,000
March 31, 2001 $250,000
June 30, 2001 $250,000
September 30, 2001 $250,000
December 31, 2001 $250,000
March 31, 2002 $250,000
June 30, 2002 $250,000
September 30, 2002 $250,000
December 31, 2002 $250,000
March 31, 2003 $250,000
June 30, 2003 $250,000
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September 30, 2003 $ 250,000
December 31, 2003 $10,000,000
March 31, 2004 $12,916,666
June 30, 2004 $12,916,667
October 30, 2004 $12,916,667
Notwithstanding the foregoing, the final installment shall be in the amount of
the then outstanding principal balance of the Tranche B Term Loans. In addition,
the then outstanding principal balance of the Tranche B Term Loans, if any,
shall be due and payable on the Tranche B Term Loan Termination Date. No
installment of any Tranche B Term Loan shall be reborrowed once repaid, except
that the initial Tranche B Term Loans extended or re-evidenced on the Effective
Date may, to the extent they have not been repaid, be refinanced with Tranche B
Term Loans made subsequently to Brink International or one of the other
Borrowers.
(ii) In addition to the scheduled payments on the Tranche B Term Loans,
the (a) Borrowers may make the voluntary prepayments described in Section 2.5(A)
for credit against the scheduled payments on the Tranche B Term Loans pursuant
to Section 2.5(A) and (b) Holdings shall make or cause to be made the mandatory
prepayments prescribed in Section 2.5(B), for credit against such scheduled
payments on the Tranche B Term Loans pursuant to Section 2.5(B).
2.2 Revolving Loans. Upon the satisfaction of the conditions precedent
set forth in Sections 4.1 and 4.2 hereof, from and including the date of this
Agreement and prior to the Termination Date, each Lender severally and not
jointly agrees, on the terms and conditions set forth in this Agreement, to make
revolving loans to the applicable Borrower from time to time, in an Agreed
Currency, in a Dollar Amount not to exceed such Lender's Tranche A Pro Rata
Share of the Dollar Amount of the Revolving Credit Availability at such time
(each individually, a "REVOLVING LOAN" and, collectively, the "REVOLVING
LOANS"); provided, however, at no time shall the Dollar Amount of the Revolving
Credit Obligations exceed the Dollar Amount of the Maximum Revolving Credit
Amount except to the extent permitted in Section 2.5(B)(ii); provided further
that at no time shall the Dollar Amount of the Revolving Credit Obligations owed
by Holdings, AAS and Valley exceed the U.S. Borrowing Base. Each Advance under
Section 2.2 shall consist of Revolving Loans made by each Lender ratably in
proportion to such Lender's respective Tranche A Pro Rata Share. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow at any time
prior to the Termination Date. The Revolving Loans made on the Closing Date
shall initially be Base Rate Loans and thereafter may be continued as Base Rate
Loans or converted into Eurocurrency Rate Loans in the manner provided in
Section 2.10 and subject to the other conditions and limitations therein set
forth and set forth in this Article II. On the Termination Date, the outstanding
principal balance of the Revolving Loans shall be paid in full by the applicable
Borrower.
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2.3 Swing Line Loans. (a) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Sections 4.1 and 4.2, from
and including the date of this Agreement and prior to the Termination Date, each
Swing Line Lender agrees, on the terms and conditions set forth in this
Agreement, to make Swing Line Loans in Dollars to AAS or Valley from time to
time in an amount not to exceed the lesser of (i) $2,000,000 (minus the
outstanding principal balance of all Swing Line Loans then outstanding)or (ii)
the Revolving Credit Availability at such time. Each Swing Line Loan shall be in
a minimum amount of not less than $50,000 (or such lesser amount as may be
agreed to by any Swing Line Lender) or an integral multiple of $50,000 ( or such
lesser amount as may be agreed to by any Swing Line Lender) in excess thereof,
and all interest payable on the Swing Line Loans shall be payable to the Swing
Line Lender for the account of such Swing Line Lender.
(b) Borrowing Notice. The applicable Borrower shall deliver to
the Administrative Agent and the applicable Swing Line Lender a Borrowing Notice
signed by it not later than 11:00 a.m. (Detroit time) on the Borrowing Date of
each Swing Line Loan specifying (i) the applicable Borrowing Date (which shall
be a Business Day) and (ii) the aggregate amount of the requested Swing Line
Loan. The Swing Line Loans shall at all times be Base Rate Loans.
(c) Making of Swing Line Loans. Promptly after receipt of the
Borrowing Notice under Section 2.3(b), the Administrative Agent shall notify
each Lender of the requested Swing Line Loan. Not later than 2:00 p.m. (Detroit
time) on the applicable Borrowing Date, the applicable Swing Line Lender shall
make available its Swing Line Loan in funds immediately available in Detroit to
the Administrative Agent at the address specified by the Administrative Agent or
directly to the applicable Borrower. If such funds are made available to the
Administrative Agent, the Administrative Agent will promptly make such funds
available to the applicable Borrower.
(d) Repayment of Swing Line Loans. The Swing Line Loans shall
be evidenced by the Swing Line Loan Notes and each Swing Line Loan shall be paid
in full by the applicable Borrower on or before the fifth Business Day after the
Borrowing Date for such Swing Line Loan. Outstanding Swing Line Loans may be
repaid from the proceeds of Revolving Loans or Swing Line Loans. Any repayment
of a Swing Line Loan shall be accompanied by accrued interest thereon and shall
be in the minimum amount of $50,000 (or such lesser amount as may be agreed to
by the applicable Swing Line Lender) and in increments of $50,000 (or such
lesser amount as may be agreed to by the applicable Swing Line Lender) in excess
thereof or the full amount of such Swing Line Loan. If the applicable Borrower
at any time fails to repay a Swing Line Loan on the applicable date when due,
the applicable Borrower shall be deemed to have elected to borrow a Revolving
Loan which shall be a Base Rate Loan under Section 2.2 as of such date equal in
amount to the unpaid amount of such Swing Line Loan (notwithstanding the minimum
amount of Base Rate Advances as provided in Section 2.9). The proceeds of any
such Advance shall be used to repay such Swing Line Loan. Unless the
Administrative Agent upon the request of or with the consent of the Required
Lenders shall have notified the applicable Swing
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Line Lender prior to such Swing Line Lender making any Swing Line Loan,
that the applicable conditions precedent set forth in Article IV have not then
been satisfied, each Lender's obligation to make Loans pursuant to Section 2.2
and this Section 2.3(d) to repay such Swing Line Loan shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including the occurrence or continuance of a Default. In the
event that any Lender fails to make payment to the Administrative Agent of any
amount due under this Section 2.3(d), the Administrative Agent shall be entitled
to receive, retain and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the Administrative Agent
receives such payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason any Lender fails to
make payment to the Administrative Agent of any amount due under this Section
2.3(d), such Lender shall be deemed, at the option of the Administrative Agent,
to have unconditionally and irrevocably purchased from the applicable Swing Line
Lender, without recourse or warranty, an undivided interest in and participation
in the applicable Swing Line Loan in the amount of the Loan such Lender was
required to make pursuant to this Section 2.3(d) and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand by the Administrative Agent and ending on the date such
obligation is fully satisfied.
2.4 Rate Options for all Advances. The Advances may be Base Rate
Advances or Eurocurrency Rate Advances, or a combination thereof, selected by
the applicable Borrower in accordance with Section 2.10. The applicable Borrower
may select, in accordance with Section 2.10, Rate Options and Interest Periods
applicable to portions of the Revolving Loans and the Term Loans.
2.5 Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Borrowers may from time to time repay or
prepay, without penalty or premium all or any part of outstanding Base Rate
Advances. A Eurocurrency Rate Advance may not be voluntarily repaid or prepaid
prior to the last day of the applicable Interest Period. Unless the aggregate
outstanding principal balance of the Term Loans is to be prepaid in full,
voluntary prepayments of the Term Loans shall be in an aggregate minimum amount
of $1,000,000 and integral multiples of $500,000 in excess of that amount. Each
voluntary prepayment shall be applied pro rata between the Tranche A Term Loans
and the Tranche B Term Loans and, in each case, applied to the unpaid
installments of such Term Loans pro rata over the remaining unpaid installments.
(B) Mandatory Prepayments.
(i) Mandatory Prepayments of Term Loans.
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(a) Upon the consummation of any Asset Sale by Holdings, any
other Borrower or any Subsidiary of any Borrower (other than Excluded
Equity Sales, Excluded Transfers and other than as set forth in Section
6.2(G) with respect to insurance and condemnation proceeds and other
than other Asset Sales which generate Net Cash Proceeds of less than
$250,000 in any one fiscal year) or, except as otherwise expressly
provided in Section 2.5(B)(i)(d)(II), the issuance of any Indebtedness
for borrowed money of Holdings or any other Borrower (other than
Indebtedness permitted pursuant to Section 6.3(A)(f) and (i)), within
three (3) Business Days after the applicable Borrower's or Subsidiary's
(i) receipt of any Net Cash Proceeds from any such Asset Sale or
issuance of Indebtedness for borrowed money, or (ii) conversion to cash
or Cash Equivalents of non-cash proceeds (whether principal or interest
and including securities, release of escrow arrangements or lease
payments) received from any Asset Sale, Holdings shall make or cause to
be made a mandatory prepayment of the Obligations in an amount equal to
one hundred percent (100%) of such Net Cash Proceeds (or in the case of
the issuance of Subordinated Notes pursuant to the Supplemental
Subordinated Note Agreement, not less than $20,000,000) or such
proceeds converted from non-cash to cash or Cash Equivalents in the
case of Asset Sales, including, without limitation, Asset Sales
consisting of the issuance of Capital Stock or ownership, membership or
other equity interests.
(b) Simultaneously with the delivery of the annual audited
financial statements required to be delivered pursuant to Section
6.1(A)(iii) for each Cash Flow Period, Holdings shall calculate Excess
Cash Flow for such Cash Flow Period and shall make a mandatory
prepayment, payable no later than ten (10) days after such calculation
is made and financial statements are delivered in an amount equal to
the difference between (1) seventy-five percent (75%), or, with respect
to each Cash Flow Period beginning with the Cash Flow Period ending
December 31, 1999 or, if Holdings effects an offering of Subordinated
Notes in an aggregate principal amount of not less than $100,000,000 in
accordance with Section 6.2(M), with respect to each Cash Flow Period
beginning with the Cash Flow Period ending December 31, 1997, fifty
percent (50%) of such Excess Cash Flow and (2) all prepayments of Term
Loans made during such period (other than repayments of Term Loans to
the extent financed with new Term Loans) and the aggregate amount of
all permanent reductions in the Aggregate Revolving Loan Commitment
made during such period.
(c) Nothing in this Section 2.5(B)(i) shall be construed to
constitute the Lenders' consent to any transaction referred to in
Section 2.5(B)(i)(a) above which is not expressly permitted by the
terms of this Agreement.
(d) Each mandatory prepayment required by clauses (a) and (b)
of this Section 2.5(B) shall be referred to herein as a "DESIGNATED
PREPAYMENT". Except as set forth in clause (f) below and in Section
6.2(G) with respect proceeds of insurance and
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condemnation, Designated Prepayments shall be allocated and applied to
the Obligations as follows:
(I) the amount of each Designated Prepayment (other
than a Designated Prepayment attributable to the issuance of
Subordinated Notes pursuant to either the High Yield Note
Agreement or the Supplemental Subordinated Note Agreement)
shall be applied pro rata between the Tranche A Term Loans and
the Tranche B Term Loans and, in each case, applied to the
unpaid installments of such Term Loans in the inverse order of
their maturity;
(II) the amount of each Designated Prepayment
attributable to the issuance of Subordinated Notes pursuant to
the High Yield Note Agreement shall be applied as follows:
first, to repay in full the Subordinated Notes issued pursuant
to the Subordinated Note Agreement and, at Holdings' option,
the Seller Note; second, at Holdings' option, up to $7,500,000
may be applied to reduce the outstanding balance of the
Revolving Credit Obligations (without reducing the Revolving
Loan Commitment); and, third, pro rata between the Tranche A
Term Loans and the Tranche B Term Loans and, in each case,
applied to the unpaid installments of such Term Loans on a pro
rata basis;
(III) the amount of each Designated Prepayment
attributable to the issuance of Subordinated Notes pursuant to
the Supplemental Subordinated Note Agreement shall be applied
pro rata between the Tranche A Term Loans and the Tranche B
Term Loans and, in each case, applied to the unpaid
installments of such Term Loans on a pro rata basis; and
(IV) following the payment in full of the Term Loans,
the amount of each Designated Prepayment shall be applied to
repay Revolving Loans (but shall reduce Revolving Loan
Commitments only at the option of the Required Lenders) and
following the payment in full of the Revolving Loans, the
amount of each Designated Prepayment shall be applied first to
interest on the Reimbursement Obligations, then to principal
on the Reimbursement Obligations, then to fees on account of
Letters of Credit and then, to the extent any L/C Obligations
are contingent, deposited with the Administrative Agent as
cash collateral in respect of such L/C Obligations.
(e) Any Tranche B Term Loan Lender may decline any Designated
Prepayment attributable to an Asset Sale or to Excess Cash Flow (but
not Designated Prepayments attributable to the issuance of Subordinated
Notes pursuant to the High Yield Note Agreement or the Supplemental
Subordinated Note Agreement), in which case the amount
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declined will be applied pro rata to each of the then remaining
installments of the Tranche A Term Loans in the inverse order of
maturity.
(f) Unless Holdings directs otherwise and agrees to pay any
resulting breakage costs as required by Section 3.4, on the date any
Designated Prepayment is received by the Administrative Agent, such
prepayment shall be applied first to Base Rate Loans and to any
Eurocurrency Rate Loans maturing on such date. The Administrative Agent
shall hold the remaining portion of such Designated Prepayment as cash
collateral in an interest bearing deposit account and shall apply funds
from such account to subsequently maturing Eurocurrency Rate Loans in
order of maturity unless the applicable Borrower directs the
Administrative Agent to prepay specific Eurocurrency Rate Loans and
agrees to make the payments required pursuant to Section 3.4 in
connection therewith.
(g) Notwithstanding anything herein to the contrary, if, in
connection with the making of the mandatory prepayment under clause (a)
in connection with any Asset Sale (other than from the issuance, sale,
conveyance or disposition of Capital Stock or ownership, membership or
other equity interests), the Borrowers notify the Administrative Agent
of their intention to use the proceeds (1) for replacement assets
purchased not longer than thirty (30) days prior to the consummation of
such sale, which assets at or prior to the time of such purchase were
identified to the Administrative Agent as assets being purchased in
anticipation of a reinvestment sale under this provision ("SCHEDULED
ASSETS") or (2) to replace the assets sold with operating assets to be
used in one or more lines of business in which the Borrowers were
engaged at the time of such Asset Sale, then, provided and to the
extent that such proceeds do not exceed $7,500,000, the Administrative
Agent shall, upon receipt of such proceeds and at the Borrowers'
direction, (y) return the same to the applicable Borrower for
application to the cost of the purchase of Scheduled Assets or (z)
apply the same to the principal amount of the Revolving Loans
outstanding at the time of such receipt and create a corresponding
reserve against Revolving Credit Availability in an amount equal to
such application (the "REINVESTMENT RESERVE") or, if the outstanding
balance of the Revolving Loan is zero, hold such proceeds in an
interest bearing account as cash collateral for the Loans. To the
extent that such proceeds exceed $7,500,000, they shall be applied as a
mandatory prepayment of the Term Loans pursuant to Section 2.5(B). For
up to 120 days from the date of any Asset Sale not in connection with
Scheduled Assets (the "REINVESTMENT PERIOD"), the Borrowers may notify
the Administrative Agent that they seek the use of such funds to
replace the property subject to any such Asset Sale with operating
assets to be used in one or more lines of business in which the
Borrowers were engaged at the time of such Asset Sale. Should a Default
occur at any time during the Reinvestment Period, should the Borrowers
notify the Administrative Agent that they have decided not to replace
such property during the Reinvestment Period, or should the Borrowers
fail to consummate such repurchase during the Reinvestment Period, then
the amounts held as the
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Reinvestment Reserve shall, unless otherwise agreed by the Required
Lenders, be applied as a mandatory prepayment pursuant to Section
2.5(B) and allocated in accordance with clause (d) above. Amounts
constituting the Reinvestment Reserve shall be disbursed as payments
for replacement of such property; provided, however, should a Default
occur after the Borrowers have notified the Administrative Agent that
they intend to replace the property, the Reinvestment Reserve shall,
unless otherwise agreed by the Required Lenders, be applied as a
mandatory prepayment pursuant to Section 2.5(B) and allocated in
accordance with clause (d) above. In the event the Reinvestment Reserve
is to be applied as a mandatory prepayment to the Term Loans, the
Borrowers shall be deemed to have requested Revolving Loans in an
amount equal to the Reinvestment Reserve, and such Loans shall be made
regardless of any failure of the Borrowers to meet the conditions
precedent set forth in Article IV. Upon completion of the replacement
of such property, the unused proceeds shall constitute Net Cash
Proceeds of an Asset Sale and shall be allocated in accordance with
clause (d) above.
(ii) Mandatory Prepayments of Revolving Loans. In addition to
repayments under Section 2.5(B)(i)(d)(II), if at any time and for any reason the
Dollar Amount of the Revolving Credit Obligations is greater than the Dollar
Amount of the Maximum Revolving Credit Amount or the Dollar Amount of the
Revolving Credit Obligations owed by Holdings, AAS and Valley exceeds the U.S.
Borrowing Base, the Borrowers shall immediately make a mandatory prepayment of
the Obligations in an amount equal to such excess, provided, however, that to
the extent that such excess is attributable to changes in currency exchanges
rates, any such mandatory prepayment to eliminate such excess will be required
only at the end of the Interest Period next ended, or to the extent necessary to
avoid the incurrence of breakage costs under Section 3.4 the Interest Period or
Periods next ended thereafter. In addition, if the Revolving Credit Availability
is at any time less than the amount of contingent L/C Obligations outstanding at
any time, the Borrowers shall deposit cash collateral with the Administrative
Agent in an amount equal to the amount by which such L/C Obligations exceed such
Maximum Revolving Credit Amount.
(iii) Subject to the preceding provisions of this Section 2.5(B), all
of the mandatory prepayments made under this Section 2.5(B) shall be applied
first to Base Rate Loans and to any Eurocurrency Rate Loans maturing on such
date. The Administrative Agent shall hold the remaining portion of such
mandatory prepayment as cash collateral in an interest bearing deposit account
and shall apply funds from such account to subsequently maturing Eurocurrency
Rate Loans in order of maturity.
2.6 Reduction of Commitments. The Borrowers may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders, in an aggregate minimum amount of $500,000 and integral multiples of
$250,000 in excess of that amount, upon at least one Business Day's prior
written notice to the Administrative Agent, which notice shall specify the
amount of any such reduction; provided, however, that the amount of the
Aggregate Revolving Loan Commitment may not be reduced below the aggregate
principal amount of the
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outstanding Revolving Credit Obligations. All accrued commitment fees shall be
payable on the effective date of any termination of the obligations of the
Lenders to make Loans hereunder.
2.7 Method of Borrowing. The Administrative Agent shall notify each
Lender by 11:30 a.m. (Detroit time) of each Advance on the Borrowing Date of
each Base Rate Advance, three Business Days before the Borrowing Date of each
Eurocurrency Rate Advance in Dollars and four Business Days before the Borrowing
Date for each Eurocurrency Rate Advance in an Agreed Currency other than Dollars
and, not later than 1:00 p.m. (Detroit time) on each Borrowing Date, each Lender
shall make available its Revolving Loan or Loans, in funds immediately available
in Detroit to the Administrative Agent at its address specified pursuant to
Article XIII hereof unless the Administrative Agent has notified the Lenders
that such Loan is to be made available to the applicable Borrower at the
Administrative Agent's Eurocurrency Payment Office in which case each Lender
shall make available its Revolving Loan or Loans, in funds immediately available
to the Administrative Agent at its Eurocurrency Payment Office not later than
1:00 p.m. (local time in the city of the Administrative Agent's Eurocurrency
Payment Office) in the Agreed Currency designated by the Administrative Agent.
The Administrative Agent will promptly make the funds so received from the
Lenders available to the applicable Borrower.
2.8 Method of Selecting Types and Interest Periods for Advances;
Determination of Applicable Margins.
(a) Method of Selecting Types and Interest Periods for
Advances. The applicable Borrower shall select the Type of Advance and,
in the case of each Eurocurrency Rate Advance, the Interest Period and
Agreed Currency applicable to each Advance from time to time. The
applicable Borrower shall give the Administrative Agent irrevocable
notice (a "BORROWING NOTICE") not later than 11:00 a.m. (Detroit time)
on the Borrowing Date of each Base Rate Advance, three Business Days
before the Borrowing Date for each Eurocurrency Rate Advance in Dollars
and four Business Days before the Borrowing Date for each Eurocurrency
Rate Advance in an Agreed Currency other than Dollars, specifying: (i)
the Borrowing Date (which shall be a Business Day) of such Advance;
(ii) the aggregate amount of such Advance; (iii) the Type of Advance
selected; and (iv) in the case of each Eurocurrency Rate Advance, the
Interest Period and Agreed Currency applicable thereto. Each Advance in
an Agreed Currency other than Dollars must be a Eurocurrency Rate
Advance. There shall be no more than eight Interest Periods in effect
with respect to all of the Loans at any time. The Borrowers shall
select Interest Periods so that, to the best of the Borrowers'
knowledge, it will not be necessary to prepay all or any portion of any
Eurocurrency Rate Advance prior to the last day of the applicable
Interest Period in order to make mandatory prepayments as required
pursuant to the terms hereof. Each Base Rate Advance shall bear
interest from and including the date of the making of such Advance to
(but not including) the date of repayment thereof at the Base Rate,
changing when and as such Base Rate changes. All Obligations (other
than Advances) shall bear interest from and including the date such
amount is payable under the
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terms of this Agreement or the other Loan Documents to (but not
including) the date of repayment thereof at the Base Rate, changing
when and as such Base Rate changes. Changes in the rate of interest on
that portion of any Advance maintained as a Base Rate Loan or such
other Obligations will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurocurrency Rate Advance shall bear
interest from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such
Eurocurrency Rate Advance.
(b) Determination of Applicable Margins, Applicable Letter of
Credit Fee and Applicable Commitment Fee.
(i) Definitions. As used in this Section 2.8(b) and in this
Agreement, the following terms shall have the following meanings:
"Applicable Margins", "Applicable Commitment Fee" and
"Applicable Letter of Credit Fee" shall mean the Applicable
Base Rate Margin and/or Applicable Eurocurrency Margin, with
respect to Loans and the Applicable Commitment Fee and/or
Applicable Letter of Credit Fee, with respect to fees payable
as the case may be. The Applicable Margins shall be
determined, in accordance with the provisions of this Section
2.8(b), by reference to the following:
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APPLICABLE BASE APPLICABLE BASE APPLICABLE EUROCURRENCY APPLICABLE APPLICABLE
SENIOR DEBT RATIO RATE MARGIN FOR RATE MARGIN FOR MARGIN FOR TRANCHE A TERM EUROCURRENCY COMMITMENT
TRANCHE A TERM TRANCHE B TERM LOANS AND REVOLVING LOANS MARGIN FOR FEE
LOANS AND LOANS AND APPLICABLE LETTER OF TRANCHE B
REVOLVING LOANS CREDIT FEE TERM LOANS
GREATER THAN OR
EQUAL TO 4.0 TO 1.75% 2.25% 2.75% 3.25% 0.50%
1.0
LESS THAN 4.0 TO
1.0 AND GREATER
THAN OR EQUAL TO 1.50% 2.00% 2.50% 3.00% 0.50%
3.5 TO 1.0
LESS THAN 3.5 TO
1.0 AND GREATER
THAN OR EQUAL TO 1.25% 1.75% 2.25% 2.75% 0.50%
3.0 TO 1.0
LESS THAN 3.0 TO
1.0 AND GREATER
THAN OR EQUAL TO 1.00% 1.50% 2.00% 2.50% 0.50%
2.5 TO 1.0
LESS THAN 2.5 TO
1.0 AND GREATER
THAN OR EQUAL TO 0.75% 1.25% 1.75% 2.25% 0.375%
2.0 TO 1.0
LESS THAN 2.0 TO
1.0 0.50% 1.00% 1.50% 2.00% 0.375%
"Senior Debt Ratio" shall have the meaning ascribed
to that term in Section 6.4(A).
(ii) Determination of Applicable Margins, Applicable Letter of
Credit Fee and Applicable Commitment Fee.
(A) Subject to the provisions of clause (C) below, the
Applicable Margin in respect of any Loan, the Applicable Letter of
Credit Fee payable under Section 2.25 and the Applicable Commitment Fee
payable under Section 2.15(c) shall be determined by reference to the
tables set forth in clause (i) above, as applicable, on the basis of
the Senior
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Debt Ratio (calculated as provided in Section 6.4(A)) determined by
reference to the most recent financial statements delivered pursuant to
Section 6.1(A)(ii) or 6.1(A)(iii).
(B) Upon receipt of the financial statements delivered
pursuant to Section 6.1(A)(ii) or Section 6.1(A)(iii), as applicable,
the Applicable Margins for all outstanding Loans, the Applicable Letter
of Credit Fee and Applicable Commitment Fee shall be adjusted, such
adjustment being effective on the first (1st) Business Day after
receipt of such financial statements and the Compliance Certificate to
be delivered in connection therewith; provided, however, if the
Borrowers shall not have timely delivered such financial statements in
accordance with Section 6.1(A)(ii) or Section 6.1(A)(iii), as
applicable, beginning with the date upon which such financial
statements should have been delivered and continuing until such
financial statements are delivered, it shall be assumed for purposes of
determining the Applicable Margins, the Applicable Commitment Fee and
the Applicable Letter of Credit Fee that the Senior Debt Ratio was
greater than or equal to 4.0 to 1.0.
(C) Notwithstanding anything herein to the contrary, from the
Effective Date to but not including the first Business Day following
receipt of the Borrowers' quarterly financial statements delivered
pursuant to Section 6.1(A)(ii) for the quarter ended June 30, 1997, the
Applicable Margins, Applicable Letter of Credit Fee and Applicable
Commitment Fee shall be determined based upon an assumption that the
Senior Debt Ratio is greater than 4.0 to 1.0. In addition,
notwithstanding anything herein to the contrary, from the Effective
Date to but not including the first Business Day following receipt of
the Borrowers' quarterly financial statements delivered pursuant to
Section 6.1(A)(ii) for the quarter ending September 30, 1998, the
Borrowers shall not be entitled to a reduction in the Applicable
Margins, Applicable Letter of Credit Fee or Applicable Commitment Fee
to the lowest Applicable Margins, Applicable Letter of Credit Fee and
Applicable Commitment Fee (based upon a Senior Debt Ratio of less than
2.0 to 1.0).
2.9 Minimum Amount of Each Advance. Each Eurocurrency Rate Advance
shall be in the minimum amount of $1,000,000 or the Approximate Equivalent
Amount of any Agreed Currency other than Dollars (and in multiples of $500,000
or the Approximate Equivalent Amount of any Agreed Currency other than Dollars
if in excess thereof), and each Base Rate Advance shall be in the minimum amount
of $500,000 (and in multiples of $100,000 if in excess thereof), provided,
however, that any Base Rate Advance may be in the amount of the unused Aggregate
Revolving Loan Commitment.
2.10 Method of Selecting Types and Interest Periods for Conversion
and Continuation of Advances.
(A) Right to Convert. The Borrowers may elect from time to time,
subject to the provisions of Section 2.4, Section 2.8 and this Section 2.10, to
convert all or any part of a Loan
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(other than a Swing Line Loan) of any Type into any other Type or Types of
Loans; provided that any conversion of any Eurocurrency Rate Advance shall be
made on, and only on, the last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Base Rate Loans shall
continue as Base Rate Loans unless and until such Base Rate Loans are converted
into Eurocurrency Rate Loans. Eurocurrency Rate Loans shall continue as
Eurocurrency Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurocurrency Rate Loans (other than Eurocurrency
Rate Loans in an Agreed Currency other than Dollars) shall be automatically
converted into Base Rate Loans unless the Borrower shall have given the
Administrative Agent notice in accordance with Section 2.10(D) requesting that,
at the end of such Interest Period, such Eurocurrency Rate Loans continue as a
Eurocurrency Rate Loan. Eurocurrency Rate Loans in an Agreed Currency other than
Dollars shall automatically continue as Eurocurrency Rate Loans unless the
applicable Borrower notifies the Administrative Agent otherwise as provided
herein.
(C) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section 2.10(A) or Section
2.10(B), no Loan may be converted into or continued as a Eurocurrency Rate Loan
(other than a Eurocurrency Rate Loan in an Agreed Currency other than Dollars)
except with the consent of the Required Lenders when any Default or Unmatured
Default has occurred and is continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the
Administrative Agent irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of
each conversion of a Base Rate Loan into a Eurocurrency Rate Loan or
continuation of a Eurocurrency Rate Loan (other than a Eurocurrency Rate Loan in
an Agreed Currency other than Dollars) not later than 11:00 a.m. (Detroit time)
three Business Days or with respect to the continuation of a Eurocurrency Rate
Loan in an Agreed Currency other than Dollars, four Business Days prior to the
date of the requested conversion or continuation, specifying: (1) the requested
date (which shall be a Business Day) of such conversion or continuation; (2) the
amount and Type of the Loan to be converted or continued; and (3) the amounts of
Eurocurrency Rate Loan(s) into which such Loan is to be converted or continued
and the duration of the Interest Periods applicable thereto. If no such notice
is given with respect to a Eurocurrency Rate Loan in an Agreed Currency other
than Dollars, the Interest Period applicable to the automatic continuation of
such Loan shall be one month.
2.11 Default Rate. After the occurrence and during the continuance of a
Default, at the option of the Administrative Agent or at the direction of the
Required Lenders, the interest rate(s) applicable to the Obligations and the
letter of credit fee payable under Section 2.25 with respect to Letters of
Credit shall be increased by two percent (2.0%) per annum above the Base Rate,
Eurocurrency Rate or Applicable Letter of Credit Fee, as applicable.
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2.12 Collections Account Arrangements. (a) All collections of
Receivables owed to AAS or Valley included in the Collateral and other proceeds
of Collateral shall be deposited in a Collection Account which is subject to a
Collection Account Agreement or pursuant to another similar arrangement for the
collection of such amounts established by AAS or Valley, as applicable, and the
Documentation and Collateral Agent and shall be transferred in accordance with
the provisions of the respective Collection Account Agreements. On or prior to
the Effective Date, AAS and Valley shall each have entered into and shall
thereafter maintain lock-box services agreements with banks which are parties to
Collection Account Agreements and to which lock-boxes Account Debtors shall
directly remit all payments on Receivables. Any of the foregoing collections
received by AAS or Valley and not so deposited, shall be deemed to have been
received by AAS or Valley, as applicable, as the Documentation and Collateral
Agent's trustee and, upon receipt thereof by AAS or Valley, as applicable, AAS
or Valley shall immediately transfer all such amounts into the applicable
Collection Account in their original form. Such deposits shall be remitted to
the Documentation and Collateral Agent, or as the Documentation and Collateral
Agent may direct, all in accordance with the provisions of the Collection
Account Agreements.
(b) Following the Collection Account Blockage Date and during the
continuance of a Default giving rise thereto, (i) all payments received by the
Documentation and Collateral Agent, all collections of Receivables owed to AAS
or Valley included in the Collateral received by the Documentation and
Collateral Agent, and all proceeds of other Collateral received by the
Documentation and Collateral Agent, whether through payment or otherwise, will
be the sole property of the Documentation and Collateral Agent for the benefit
of the Holders of Secured Obligations and will be deemed received by the
Documentation and Collateral Agent for application to the Obligations pursuant
to the terms of this Agreement.
2.13 Method of Payment. All payments of principal, interest, and fees
hereunder shall be made, without setoff, deduction or counterclaim, to the
Administrative Agent (i) at the Administrative Agent's office in Detroit,
Michigan in immediately available funds with respect to Advances denominated in
Dollars and (ii) in the Administrative Agent's Eurocurrency Payment Office in
immediately available funds with respect to any Advance denominated in an Agreed
Currency other than Dollars, in each case, or at any other Lending Installation
of the Administrative Agent specified in writing (by 9:00 a.m. (Detroit time) on
the day before the date when due) by the Administrative Agent to the Borrower,
by 2:00 p.m. local time in Detroit with respect to Advances denominated in
Dollars and 2:00 p.m. local time in the Administrative Agent's Eurocurrency
Payment Office with respect to Advances denominated in an Agreed Currency other
than Dollars on the date when due and shall be made ratably among the Lenders
(unless such amount is not to be shared ratably in accordance with the terms
hereof). Each Advance shall be repaid or prepaid in the currency in which it was
made in the amount borrowed and interest payable thereon shall be paid in such
currency. Each payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds which the Administrative Agent
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received at its address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Administrative Agent from
such Lender. The Borrowers authorize the Administrative Agent or the
Documentation and Collateral Agent to charge any account of any Borrower
maintained with Chase or NBD, as applicable, for each payment of principal,
interest and fees as it becomes due hereunder. Notwithstanding the foregoing
provisions of this Section, if, after the making of any Advance in any currency
other than Dollars, currency control or exchange regulations are imposed in the
country which issues such currency with the result that different types of such
currency (the "New Currency") are introduced and the type of currency in which
the Advance was made (the "Original Currency") no longer exists or the
applicable Borrower is not able to make payment to the Administrative Agent for
the account of the Lenders in such Original Currency, then all payments to be
made by the applicable Borrower hereunder or under the Notes in such currency
shall be made in such amount and such type of the New Currency or Dollars as
shall be equivalent to the amount of such payment otherwise due hereunder or
under the Notes in the Original Currency, it being the intention of the parties
hereto that the Borrowers take all risks of the imposition of any such currency
control or exchange regulations. In addition, notwithstanding the foregoing
provisions of this Section, if, after the making of any Advance in any currency
other than Dollars, the applicable Borrower is not able to make payment to the
Administrative Agent for the account of the Lenders in the type of currency in
which such Advance was made because of the imposition of any such currency
control or exchange regulation, then such Advance shall instead be repaid when
due in Dollars in a principal amount equal to the Dollar Amount (as of the date
of repayment) of such Advance.
2.14 Notes, Telephonic Notices. Each Lender is authorized to record the
principal amount of each of its Loans and each repayment with respect to its
Loans on the schedule attached to its respective Notes; provided, however, that
the failure to so record shall not affect the applicable Borrower's obligations
under any such Note. The Borrowers authorize the Lenders and the Administrative
Agent to extend Advances, effect selections of Types of Advances and to transfer
funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf
of one or more of the Borrowers. The Borrowers agree to deliver promptly to the
Administrative Agent a written confirmation, signed by an Authorized Officer, if
such confirmation is requested by the Administrative Agent or any Lender, of
each telephonic notice. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent and the Lenders, (i)
the telephonic notice shall govern absent manifest error and (ii) the
Administrative Agent or the Lender, as applicable, shall promptly notify the
Authorizing Officer who provided such confirmation of such difference.
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. Each of the Borrowers unconditionally promises to
pay when due the principal amount of each Loan made to it and all other
Obligations incurred by it, and to pay
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all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the Notes, it being understood and agreed that each non-U.S.
Borrower shall be obligated to repay only the Loans made to it and pay the other
Obligations incurred by it and certain other Loans made and Obligations incurred
by other non-U.S. Borrowers.
(B) Interest Payment Dates. Interest accrued on each Base Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, on any date on which the Base Rate Loan is prepaid,
whether due to acceleration or otherwise, and at maturity (whether by
acceleration or otherwise). Interest accrued on each Eurocurrency Rate Loan
shall be payable on the last day of its applicable Interest Period, on any date
on which the Eurocurrency Rate Loan is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Eurocurrency Rate Loan
having an Interest Period longer than three months shall also be payable on the
last day of each three-month interval during such Interest Period. Interest
accrued on the principal balance of all other Obligations shall be payable in
arrears (i) upon repayment thereof in full or in part, (ii) if not theretofore
paid in full, at the time such other Obligation becomes due and payable (whether
by acceleration or otherwise) and (iii) if not theretofore paid in full, on
demand, commencing on the first such day following the date such Obligation
became payable pursuant to the terms of this Agreement or the other Loan
Documents.
(C) Fees. (i) Holdings shall pay or cause the appropriate Subsidiary to
pay to the Administrative Agent, for the account of the Lenders in accordance
with their Tranche A Pro Rata Shares, a commitment fee accruing at the rate of
the Applicable Commitment Fee per annum from and after the Effective Date until
the Termination Date on the amount by which (A) the Aggregate Revolving Loan
Commitment in effect from time to time exceeds (B) the Revolving Credit
Obligations (excluding the outstanding balance of any Swing Line Loans) in
effect from time to time. All such commitment fees payable under this clause (C)
shall be payable quarterly in arrears on the last calendar day of each quarter
occurring after the Effective Date and, in addition, on the Termination Date.
For purposes of calculating the Applicable Commitment Fee hereunder, the
principal amount of each Advance made in a currency other than Dollars shall be
the Dollar Amount of such Advance as determined under clause (ii) of the
definition of "Dollar Amount".
(ii) Holdings agrees to pay or cause the appropriate Subsidiary to pay
to the Administrative Agent and the Documentation and Collateral Agent,
respectively, the fees set forth in the letter agreements (A) among the
Administrative Agent, AAS and Holdings dated July 10, 1997 and (B) among
Holdings, AAS, the Agents and the Arrangers dated July 10, 1997.
(D) Interest and Fee Basis. Interest and fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day an Obligation is incurred but not for the day of any payment on the
amount paid if payment is received prior to 12:00 noon local time in Detroit
with respect to Advances denominated in Dollars and 12:00 noon local time in the
Administrative Agent's Eurocurrency Payment Office with respect to Advances
denominated in an
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Agreed Currency other than Dollars at the place of payment. If any payment of
principal of or interest on a Loan or any payment of any other Obligations shall
become due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
(E) Taxes.
(i) Any and all payments by any of the Borrowers hereunder
shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings or any liabilities with respect thereto including those
arising after the date hereof as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or determination
of a Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority but excluding, in the
case of each Lender and the Administrative Agent, such taxes (including
income taxes, franchise taxes and branch profit taxes) as are imposed
on or measured by such Lender's or Administrative Agent's, as the case
may be, income by the United States of America or any Governmental
Authority of the jurisdiction under the laws of which such Lender or
Administrative Agent, as the case may be, is organized (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings,
and liabilities which the Administrative Agent or a Lender determines
to be applicable to this Agreement, the other Loan Documents, the
Revolving Loan Commitments, the Loans or the Letters of Credit being
hereinafter referred to as "TAXES"). If any of the Borrowers shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under the other Loan Documents to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
2.15(E)) such Lender or Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions,
and (iii) such Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law. If a withholding tax of the United States of America or
any other Governmental Authority shall be or become applicable (y)
after the date of this Agreement, to such payments by any of the
Borrowers made to the Lending Installation or any other office that a
Lender may claim as its Lending Installation, or (z) after such
Lender's selection and designation of any other Lending Installation,
to such payments made to such other Lending Installation, such Lender
shall use reasonable efforts to make, fund and maintain its Loans
through another Lending Installation of such Lender in another
jurisdiction so as to reduce the Borrowers' liability hereunder, if the
making, funding or maintenance of such Loans through such other Lending
Installation of such Lender does not, in the good faith judgment of
such Lender, otherwise adversely affect such Loans, or obligations
under the Revolving Loan Commitments or such Lender.
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(ii) In addition, Holdings agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies that arise from any payment made hereunder,
from the issuance of Letters of Credit hereunder, or from the
execution, delivery or registration of, or otherwise with respect to,
this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "OTHER TAXES").
(iii) Subject to Section 2.15(E)(vii), Holdings indemnifies
each Lender and the Administrative Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any Governmental Authority on amounts payable under
this Section 2.15(E)) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest,
and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days after the date
such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. A certificate as to any additional amount
payable to any Lender or the Administrative Agent under this Section
2.15(E) submitted to Holdings and the Administrative Agent (if a Lender
is so submitting) by such Lender or the Administrative Agent shall show
in reasonable detail the amount payable and the calculations used to
determine such amount and shall, absent manifest error, be final,
conclusive and binding upon all parties hereto. With respect to such
deduction or withholding for or on account of any Taxes and to confirm
that all such Taxes have been paid to the appropriate Governmental
Authorities, Holdings shall promptly (and in any event not later than
thirty (30) days after receipt) furnish to each Lender and the
Administrative Agent such certificates, receipts and other documents as
may be required (in the judgment of such Lender or the Administrative
Agent) to establish any tax credit to which such Lender or the
Administrative Agent may be entitled. A payment may be made by Holdings
or by the Subsidiary that is the Borrower with respect to the Loan that
gives rise to such payment.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by any Borrower, such Borrower shall furnish to
the Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement
of Holdings hereunder, the agreements and obligations of Holdings
contained in this Section 2.15(E) shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of
Credit and the termination of this Agreement.
(vi) Without limiting the obligations of the Borrowers under
this Section 2.15(E), each Lender that is not created or organized
under the laws of the United States of America or a political
subdivision thereof shall deliver to Holdings and the Administrative
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Agent on or before the Closing Date, or, if later, the date on which
such Lender becomes a Lender pursuant to Section 12.3 hereof, a true
and accurate certificate executed in duplicate by a duly authorized
officer of such Lender, in a form satisfactory to Holdings and the
Administrative Agent, to the effect that such Lender is capable under
the provisions of an applicable tax treaty concluded by the United
States of America (in which case the certificate shall be accompanied
by two executed copies of Form 1001 of the IRS) or under Section 1442
of the Code (in which case the certificate shall be accompanied by two
copies of Form 4224 of the IRS) or, if such Lender is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, two completed
and signed copies of IRS Form W-8 or W-9 or successor applicable form,
of receiving payments of interest and fees hereunder without deduction
or withholding of United States federal income tax. Each such Lender
further agrees to deliver to Holdings and the Administrative Agent from
time to time a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender substantially in a form
satisfactory to Holdings and the Administrative Agent, before or
promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to Holdings and the
Administrative Agent pursuant to this Section 2.15(E)(vi). Further,
each Lender which delivers a certificate accompanied by Form 1001 of
the IRS covenants and agrees to deliver to Holdings and the
Administrative Agent within fifteen (15) days prior to January 1, 1999,
and every third (3rd) anniversary of such date thereafter, on which
this Agreement is still in effect, another such certificate and two
accurate and complete original signed copies of Form 1001 (or any
successor form or forms required under the Code or the applicable
regulations promulgated thereunder), and each Lender that delivers a
Form W-8 or W-9 as prescribed above or a certificate accompanied by
Form 4224 of the IRS covenants and agrees to deliver to Holdings and
the Administrative Agent within fifteen (15) days prior to the
beginning of each subsequent taxable year of such Lender during which
this Agreement is still in effect, another such Form W-8 or W-9 or
another such certificate and two accurate and complete original signed
copies of IRS Form 4224 (or any successor form or forms required under
the Code or the applicable regulations promulgated thereunder). Each
such certificate shall certify as to one of the following:
(a) that such Lender is capable of receiving payments
of interest hereunder without deduction or withholding of
United States of America federal income tax;
(b) that such Lender is not capable of receiving
payments of interest hereunder without deduction or
withholding of United States of America federal income tax as
specified therein but is capable of recovering the full amount
of any such deduction or withholding from a source other than
the Borrowers and will not seek any such recovery from the
Borrowers; or
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(c) that, as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental
Authority after the date such Lender became a party hereto,
such Lender is not capable of receiving payments of interest
hereunder without deduction or withholding of United States of
America federal income tax as specified therein and that it is
not capable of recovering the full amount of the same from a
source other than the Borrowers.
Each Lender shall promptly furnish to Holdings and the
Administrative Agent such additional documents as may be reasonably
required by Holdings or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender.
(vii) None of the Borrowers shall be required to pay any
additional amounts under subsection (i) above or indemnification under
subsection (iii) above to the extent that the obligation to pay such
additional amounts or indemnification would not have arisen but for:
(a) a failure by the Lender or Administrative Agent to comply with the
provisions of subsection (vi) above; or (b) the certifications referred
to in subsection (vi) above not being true.
(viii) Each Lender and the Administrative Agent agree that if
it shall become aware that it is entitled to receive a refund in
respect of Taxes or Other Taxes as to which it has been indemnified by
Holdings or any other Borrower pursuant to this Section 2.15(E), it
shall promptly notify Holdings of the availability of such refund and
at the request of Holdings will apply for such refund; provided,
however the failure to provide such notice shall not relieve Holdings
or any other Borrower of any of their Obligations hereunder. Upon
receipt of such refund, the Lender or Administrative Agent agrees to
pay such refund to the applicable Borrower along with any interest
actually received from the taxing authority, net of all out-of-pocket
expenses of such Lender or Administrative Agent incurred with respect
to such refund.
(F) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Obligations of each of the Borrowers to such Lender owing to such Lender from
time to time, including the amount of principal and interest payable and paid to
such Lender from time to time hereunder and under the Notes.
(G) Control Account. The Register maintained by the Administrative
Agent pursuant to Section 12.3(C) shall include a control account, and a
subsidiary account for each Lender and each Borrower, in which accounts (taken
together) shall be recorded (i) the date and amount of each Advance made
hereunder, the type and currency of each Loan comprising such Advance, the
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Borrower of such Advance, and any Interest Period applicable thereto, (ii) the
effective date and amount of each assignment and acceptance delivered to and
accepted by it and the parties thereto pursuant to Section 12.3, (iii) the
amount of any principal or interest due and payable or to become due and payable
from any Borrower to each Lender hereunder or under its Notes, (iv) the amount
of any sum received by the Administrative Agent from each of the Borrowers
hereunder and each Lender's share thereof, and (v) all other appropriate debits
and credits as provided in this Agreement, including, without limitation, all
fees, charges, expenses and interest.
(H) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error,
unless the Borrowers object to information contained in the Register and each
Loan Account within thirty (30) days of the Borrowers' receipt of such
information.
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof,
the Administrative Agent will notify each Lender of the contents of each
Aggregate Revolving Loan Commitment reduction notice, Borrowing Notice,
Continuation/Conversion Notice, and repayment notice received by it hereunder.
The Administrative Agent will notify each Lender of the interest rate applicable
to each Eurocurrency Rate Loan promptly upon determination of such interest rate
and will give each Lender prompt notice of each change in the Alternate Base
Rate.
2.17 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or
facsimile notice to the Administrative Agent and the Borrowers, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless the
applicable Borrower or a Lender, as the case may be, notifies the Administrative
Agent prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of a Borrower, a payment of principal, interest or fees to the
Administrative Agent for the account of the Lenders, that it does not intend to
make such payment, the Administrative Agent may assume that such payment has
been made. The Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such payment shall,
on demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan.
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2.19 Termination Date. This Agreement shall be effective until the
Tranche B Term Loan Termination Date. Notwithstanding the termination of this
Agreement on the Tranche B Term Loan Termination Date, until all of the
Obligations (other than contingent indemnity and reimbursement obligations)
shall have been fully and indefeasibly paid and satisfied, all financing
arrangements among the Borrowers and the Lenders shall have been terminated
(other than under Interest Rate Agreements or other agreements with respect to
Rate Hedging Obligations) and all of the Letters of Credit shall have expired,
been canceled or terminated, all of the rights and remedies under this Agreement
and the other Loan Documents shall survive and the Administrative Agent shall be
entitled to retain its security interest in and to all existing and future
Collateral for the benefit of itself and the Holders of Secured Obligations.
2.20 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Tranche A Pro Rata Share or Tranche
B Pro Rata Share, as applicable, of any Advance requested by any Borrower which
such Lender is obligated to fund under the terms of this Agreement and which
failure has not been cured, (ii) requested compensation from the Borrower under
Sections 2.15(E), 3.1 or 3.2 to recover Taxes, Other Taxes or other additional
costs incurred by such Lender which are not being incurred generally by the
other Lenders, (iii) delivered a notice pursuant to Section 3.3 claiming that
such Lender is unable to extend Eurocurrency Rate Loans to any Borrower for
reasons not generally applicable to the other Lenders or (iv) has invoked
Section 9.2, then, in any such case, any Borrower or the Administrative Agent
may make written demand on such Affected Lender (with a copy to the
Administrative Agent in the case of a demand by any Borrower and a copy to the
Borrowers in the case of a demand by the Administrative Agent) for the Affected
Lender to assign, and such Affected Lender shall use its best efforts to assign
pursuant to one or more duly executed assignment and acceptance agreements in
substantially the form of Exhibit F five (5) Business Days after the date of
such demand, to one or more financial institutions that comply with the
provisions of Section 12.3(A) (and, if selected by the Borrowers is reasonably
acceptable to the Administrative Agent) which any Borrower or the Administrative
Agent, as the case may be, shall have engaged for such purpose ("REPLACEMENT
LENDER"), all of such Affected Lender's rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, its
Revolving Loan Commitment, all Loans owing to it, all of its participation
interests in existing Letters of Credit, and its obligation to participate in
Letters of Credit hereunder) in accordance with Section 12.3. The Administrative
Agent agrees, upon the occurrence of such events with respect to an Affected
Lender and upon the written request of any Borrower, to use its reasonable
efforts to obtain the commitments from one or more financial institutions to act
as a Replacement Lender. Further, with respect to such assignment the Affected
Lender shall have concurrently received, in cash, all amounts due and owing to
the Affected Lender hereunder or under any other Loan Document, including,
without limitation, the aggregate outstanding principal amount of the Loans owed
to such Lender, together with accrued interest thereon through the date of such
assignment, amounts payable under Sections 2.15(E), 3.1, and 3.2 with respect to
such Affected Lender and compensation payable under Section 2.15(C) in the event
of any replacement of any
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Affected Lender under clause (ii) or clause (iii) of this Section 2.20; provided
that upon such Affected Lender's replacement, such Affected Lender shall cease
to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15(E), 3.1, 3.2, 3.4, and 9.7, as well as to any fees accrued for its
account hereunder and not yet paid, and shall continue to be obligated under
Section 10.8. Upon the replacement of any Affected Lender pursuant to this
Section 2.20, the provisions of Section 8.2 shall continue to apply with respect
to Advances which are then outstanding with respect to which the Affected Lender
failed to fund its obligations hereunder and which failure has not been cured.
2.21 Letter of Credit Facility. Upon receipt of duly executed
applications therefor, and such other documents, instructions and agreements as
such Issuing Lender may reasonably require, and subject to the provisions of
Article IV, the Administrative Agent shall, or any other Lender in its sole
discretion may, issue letters of credit denominated in dollars for the account
of the applicable Borrower, on terms as are satisfactory to the Issuing Lender;
provided, however, that no Letter of Credit will be issued for the account of
any Borrower by an Issuing Lender if on the date of issuance, before or after
taking such Letter of Credit into account, (i) the Revolving Credit Obligations
at such time would exceed the Maximum Revolving Credit Amount at such time or
(ii) the aggregate outstanding amount of the L/C Obligations exceeds
$10,000,000; and provided, further, that no Letter of Credit shall be issued
which has an expiration date more than one year after the date of issuance of
such Letter of Credit or an expiration date later than the date which is five
(5) Business Days immediately preceding the Termination Date. Each Issuing
Lender that is not the Administrative Agent will notify the Administrative Agent
of any request for issuance of a Letter of Credit prior to the issuance of such
Letter of Credit. Each Letter of Credit may, upon the request of the applicable
Borrower, include a provision whereby such Letter of Credit shall be renewed
automatically for additional consecutive periods of 12 months or less (but not
beyond the date that is five Business Days prior to the Termination Date) unless
the Issuing Lender notifies the beneficiary thereof at least 30 days prior to
the then-applicable expiry date that such Letter of Credit will not be renewed.
That certain letter of credit No. 536224 issued by Comerica Bank for the account
of Valley Industries, Inc. shall be treated as a Letter of Credit issued
hereunder for all purposes from and after the Effective Date, including, without
limitation, Section 2.25; Valley hereby assumes the reimbursement obligation
with respect to such letter of credit.
2.22 Letter of Credit Participation. Immediately upon the issuance of
each Letter of Credit by any Issuing Lender hereunder, each Lender with a
Tranche A Pro Rata Share shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the applicable Issuing Lender an
undivided interest and participation in and to such Letter of Credit, the
obligations of the applicable Borrower in respect thereof, and the liability of
the applicable Issuing Lender thereunder (collectively, an "L/C INTEREST") in an
amount equal to the amount available for drawing under such Letter of Credit
multiplied by such Lender's Tranche A Pro Rata Share.
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The applicable Issuing Lender will notify the Administrative Agent
promptly upon presentation to it of an L/C Draft or upon any other draw under a
Letter of Credit and the Administrative Agent will promptly notify each Lender.
On or before the Business Day on which the applicable Issuing Lender makes
payment of each such L/C Draft or any other draw on a Letter of Credit, on
demand of the Issuing Lender received by each Lender not later than 1:00 p.m.
(Detroit time) on such Business Day, each Lender shall make payment on such
Business Day to the Administrative Agent for the account of the applicable
Issuing Lender, in immediately available funds in an amount equal to such
Lender's Tranche A Pro Rata Share of the amount of such payment or draw.
Upon the Administrative Agent's receipt of funds as a result of an
Issuing Lender's payment on an L/C Draft or any other draw on a Letter of Credit
issued by an Issuing Lender, the Administrative Agent shall promptly pay such
funds to the Issuing Lender. The obligation of each Lender to pay the
Administrative Agent for the account of the applicable Issuing Lender under this
Section 2.22 shall be unconditional, continuing, irrevocable and absolute. In
the event that any Lender fails to make payment to the Administrative Agent of
any amount due under this Section 2.22, the Administrative Agent shall be
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the Administrative
Agent on behalf of the applicable Issuing Lender receives such payment from such
Lender or such obligation is otherwise fully satisfied; provided, however, that
nothing contained in this sentence shall relieve such Lender of its obligation
to reimburse the Administrative Agent for such amount in accordance with this
Section 2.22.
2.23 Reimbursement Obligation. Each of the Borrowers agrees
unconditionally, irrevocably and absolutely upon receipt of notice from the
Administrative Agent or the applicable Issuing Lender to pay immediately to the
Administrative Agent, for the account of the applicable Issuing Lender or the
account of the Lenders, as the case may be, the amount of each advance which may
be drawn under or pursuant to a Letter of Credit issued for its account or an
L/C Draft related thereto (such obligation of each of the Borrowers to reimburse
the Issuing Lender or the Administrative Agent for an advance made under a
Letter of Credit or L/C Draft being hereinafter referred to as a "REIMBURSEMENT
OBLIGATION" with respect to such Letter of Credit or L/C Draft), each such
payment to be made by the applicable Borrower to the Administrative Agent no
later than 2:00 p.m. (Detroit time) on the Business Day on which the applicable
Issuing Lender makes payment of each such L/C Draft or, in the case of any other
draw on a Letter of Credit, 2:00 p.m. (Detroit time) on the date specified in a
demand by the Administrative Agent. Any Issuing Lender may direct the
Administrative Agent to make such demand with respect to Letters of Credit
issued by such Issuing Lender. If any Borrower at any time fails to repay a
Reimbursement Obligation pursuant to this Section 2.23, such Borrower shall be
deemed to have elected to borrow a Revolving Loan from the Lenders, as of the
date of the Advance giving rise to the Reimbursement Obligation equal in amount
to the amount of the unpaid Reimbursement Obligation. Such Revolving Loan shall
be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy
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the conditions precedent otherwise applicable to an Advance of Revolving Loans
if such Borrower shall have failed to make such payment to the Administrative
Agent for the account of the applicable Issuing Lender prior to such time. Such
Revolving Loans shall constitute a Base Rate Advance, the proceeds of which
Advance shall be used to repay such Reimbursement Obligation. If, for any
reason, such Borrower fails to repay a Reimbursement Obligation on the day such
Reimbursement Obligation arises and, for any reason, the Lenders are unable to
make or have no obligation to make a Revolving Loan, then such Reimbursement
Obligation shall bear interest from and after such day, until paid in full, at
the interest rate applicable to a Base Rate Advance.
2.24 Cash Collateral. Notwithstanding anything to the contrary herein
or in any application for a Letter of Credit, after the occurrence and during
the continuance of Default, each Borrower shall, upon the Administrative Agent's
demand, deliver to the Administrative Agent for the benefit of the Lenders,
cash, or other collateral of a type satisfactory to the Required Lenders, having
a value, as determined by such Lenders, equal to the aggregate outstanding L/C
Obligations or such Borrower. In addition, if the amount of L/C Obligations
outstanding at any time exceeds the Maximum Revolving Credit Amount minus the
outstanding principal balance of the Revolving Loans, Holdings shall deposit
cash collateral with the Administrative Agent in an amount equal to the amount
by which such L/C Obligations exceeds the Maximum Revolving Credit Amount minus
the outstanding principal balance of the Revolving Loans. Any such collateral
shall be held by the Administrative Agent in a separate account appropriately
designated as a cash collateral account in relation to this Agreement and the
Letters of Credit and retained by the Administrative Agent for the benefit of
the Lenders as collateral security for the Borrowers' obligations in respect of
this Agreement and each of the Letters of Credit and L/C Drafts. Such amounts
shall be applied to reimburse the Administrative Agent or each Issuing Lender,
as applicable, for drawings or payments under or pursuant to Letters of Credit
or L/C Drafts, or if no such reimbursement is required, to payment of such of
the other Obligations as the Administrative Agent shall determine. If no Default
shall be continuing, amounts remaining in any cash collateral account
established pursuant to this Section 2.24 which are not to be applied to
reimburse the Administrative Agent for amounts actually paid or to be paid by
the Administrative Agent in respect of a Letter of Credit or L/C Draft, shall be
returned to the applicable Borrower (after deduction of the Administrative
Agent's expenses incurred in connection with such cash collateral account).
2.25 Letter of Credit Fees. Each of the Borrowers agrees to pay (i)
quarterly, in arrears, on each Payment Date to the Administrative Agent for the
ratable benefit of the Lenders, except as set forth in Section 8.2, a letter of
credit fee ("LETTER OF CREDIT FEE")in the amount of the Applicable Letter of
Credit Fee Rate per annum on the aggregate average daily outstanding amount
available for drawing under all of the Letters of Credit issued for its account,
and (ii) to the Administrative Agent for the benefit of the Issuing Lenders, a
fronting fee of one-eighth of one percent (0.125%) per annum on the aggregate
average daily outstanding amount available for drawing under all of the Letters
of Credit issued for its account payable monthly in arrears plus all
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customary fees and other issuance, amendment, document examination, negotiation
and presentment expenses and related charges in connection with the issuance,
amendment, presentation of L/C Drafts, and the like customarily charged by the
Issuing Lender with respect to standby and commercial Letters of Credit,
including, without limitation, standard commissions with respect to commercial
Letters of Credit, payable at the time of invoice of such amounts.
2.26 Indemnification; Exoneration. (a) In addition to amounts payable
as elsewhere provided in this Agreement, each Borrower with respect to Letters
of Credit issued for its account agrees to protect, indemnify, pay and save
harmless the Administrative Agent, each Issuing Lender and each Lender from and
against any and all liabilities and costs which the Administrative Agent, any
Issuing Lender or any Lender may incur or be subject to as a consequence, direct
or indirect, of (i) the issuance of any Letter of Credit other than, in the case
of the Issuing Lender, as a result of its Gross Negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the Issuing Lender of a Letter of Credit to
honor a drawing under such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
Governmental Authority (all such acts or omissions herein called "GOVERNMENTAL
ACTS").
(b) As among the Borrowers, the Lenders, the Issuing Lenders and the
Administrative Agent, the Borrowers assume all risks of the acts and omissions
of, or misuse of such Letter of Credit by, the beneficiary of any Letter of
Credit. In furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit applications and Letter of Credit
reimbursement agreements executed by the applicable Borrower at the time of
request for any Letter of Credit, the Issuing Lender of a Letter of Credit, the
Administrative Agent and the Lenders shall not be responsible (in the absence of
Gross Negligence or willful misconduct in connection therewith, as determined by
the final judgment of a court of competent jurisdiction): (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
the Letters of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Administrative Agent, the Issuing Lender
and the Lenders including, without limitation, any Governmental Acts. None
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of the above shall affect, impair, or prevent the vesting of any of the Issuing
Lender's rights or powers under this Section 2.26.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by an Issuing
Lender under or in connection with Letters of Credit issued on behalf of any
Borrower or any related certificates shall not, in the absence of Gross
Negligence or willful misconduct, as determined by the final judgment of a court
of competent jurisdiction, put the Issuing Lender, the Administrative Agent or
any Lender under any resulting liability to any Borrower or relieve any Borrower
of any of its obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.26 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
2.27 Judgment Currency. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due from a Borrower hereunder or
under any of the Notes in the currency expressed to be payable herein or under
the Notes (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's main office in Detroit,
Michigan on the Business Day preceding that on which the final, non-appealable
judgment is given. The obligations of the applicable Borrower in respect of any
sum due to any Lender or the Administrative Agent hereunder or under any Note
shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Administrative Agent (as the case may be) of any
sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, the applicable Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 11.2, such Lender or the Agent, as the case may be, agrees to remit such
excess to the applicable Borrower.
2.28 Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in Article II with respect to any Advance in any currency
other than Dollars, if there shall occur on
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or prior to the date of such Advance any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Administrative
Agent or the Required Lenders make it impracticable for the Eurocurrency Rate
Loans comprising such Advance to be denominated in the currency specified by the
applicable Borrower, then the Administrative Agent shall forthwith give notice
thereof to Holdings and the Lenders, and such Loans shall not be denominated in
such currency but shall be made on such Borrowing Date in Dollars, in an
aggregate principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Borrowing Notice, as Base Rate Loans, unless the
applicable Borrower notifies the Agent at least one Business Day before such
date that (i) it elects not to borrow on such date or (ii) it elects to borrow
on such date in a different Agreed Currency, as the case may be, in which the
denomination of such Loans would in the opinion of the Administrative Agent and
the Required Lenders be practicable and in an aggregate principal amount equal
to the Dollar Amount of the aggregate principal amount specified in the related
Borrowing Notice.
2.29 Borrowing Subsidiaries. Holdings may at any time or from time to
time, with the consent of the Administrative Agent, which consent shall not be
unreasonably withheld, add as a party to this Agreement any Subsidiary to be a
"Borrowing Subsidiary" hereunder by (a) the execution and delivery to the
Administrative Agent of a duly completed Assumption Letter by such Subsidiary,
with the written consent of Holdings at the foot thereof and (b) the execution
and delivery to the Administrative Agent of such guaranty and security documents
as may be reasonably required by the Administrative Agent. Upon such execution,
delivery and consent, such Subsidiary shall for all purposes be a party hereto
as a Borrowing Subsidiary as fully as if it had executed and delivered this
Agreement. So long as the principal of and interest on any Advances made to any
Borrowing Subsidiary under this Agreement shall have been repaid or paid in
full, all Letters of Credit issued for the account of such Borrowing Subsidiary
have expired or been returned and terminated and all other obligations of such
Borrowing Subsidiary under this Agreement shall have been fully performed,
Holdings may, by not less than five Business Days' prior notice to the
Administrative Agent (which shall promptly notify the Lenders thereof),
terminate such Borrowing Subsidiary's status as a "Borrowing Subsidiary".
ARTICLE III: CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and having
general applicability to all banks within the jurisdiction in which such Lender
operates (excluding, for the avoidance of doubt, the effect of and phasing in of
capital requirements or other regulations or guidelines passed prior to the date
of this Agreement), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof,
or the compliance of any Lender therewith,
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(i) subjects any Lender (each reference in this Section 3.1 to
a Lender being in its capacity as a Lender or an Issuing Lender, or
both) or any applicable Lending Installation to any tax, duty, charge
or withholding on or from payments due from any of the Borrowers
(excluding taxation imposed by the United States of America or any
Governmental Authority of the jurisdiction under the laws of which such
Lender is organized, on the overall net income of any Lender or
applicable Lending Installation), or changes the basis of taxation of
payments to any Lender in respect of its Loans, its L/C Interests, the
Letters of Credit or other amounts due it hereunder, provided however
that this clause (i) shall not apply with respect to any Taxes to which
Section 2.15(E) applies, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation with
respect to its Eurocurrency Rate Loans, L/C Interests or the Letters of
Credit, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining the Eurocurrency Rate Loans, the L/C
Interests or the Letters of Credit or reduces any amount received by
any Lender or any applicable Lending Installation in connection with
Eurocurrency Rate Loans or Letters of Credit, or requires any Lender or
any applicable Lending Installation to make any payment calculated by
reference to the amount of Loans or L/C Interests held or interest
received by it or by reference to the Letters of Credit, by an amount
deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Loans, L/C Interests or Letters of Credit or
to reduce any amount received under this Agreement, then, within 15 days after
receipt by Holdings of written demand by such Lender pursuant to Section 3.5,
Holdings shall pay or cause the appropriate Subsidiary to pay such Lender that
portion of such increased expense incurred or reduction in an amount received
which such Lender determines is attributable to making, funding and maintaining
its Loans, L/C Interests, Letters of Credit and its Revolving Loan Commitment.
3.2 Changes in Capital Adequacy Regulations. If a Lender (each
reference in this Section 3.2 to a Lender being in its capacity as a Lender or
an Issuing Lender, or both) determines (i) the amount of capital required or
expected to be maintained by such Lender, any Lending Installation of such
Lender or any corporation controlling such Lender is increased as a result of a
"Change" (as defined below), and (ii) such increase in capital will result in an
increase in the cost to such Lender of maintaining its Loans, L/C Interests, the
Letters of Credit or its obligation to make Loans hereunder, then, within 15
days after receipt by Holdings of written demand by such Lender pursuant to
Section 3.5, Holdings shall pay or cause the appropriate Subsidiary to pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the
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portion of such increased capital which such Lender determines is attributable
to this Agreement, its Loans, its L/C Interests, the Letters of Credit or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "CHANGE" means (i) any change after the date
of this Agreement in the "Risk-Based Capital Guidelines" (as defined below)
excluding, for the avoidance of doubt, the effect of any phasing in of such
Risk-Based Capital Guidelines or any other capital requirements passed prior to
the date hereof, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement and having general applicability to all banks and
financial institutions within the jurisdiction in which such Lender operates
which affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender.
"RISK-BASED CAPITAL GUIDELINES" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3 Availability of Types of Advances. If (i) any Lender determines
that maintenance of its Eurocurrency Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type, currency and maturity appropriate to match fund
Eurocurrency Rate Advances are not available or (y) the interest rate applicable
to a Eurocurrency Rate Advance does not accurately reflect the cost of making or
maintaining such a Eurocurrency Rate Advance, then the Administrative Agent
shall suspend the availability of Eurocurrency Rate Advances and, in the case of
any occurrence set forth in clause (i), require any Eurocurrency Rate Advances
to be repaid or, at the option of Holdings, converted to Base Rate Advances.
3.4 Funding Indemnification. If any payment of a Eurocurrency Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, or otherwise, or a
Eurocurrency Rate Advance is not made or continued on the date specified by the
applicable Borrower for any reason other than default by the Lenders, the
applicable Borrower agrees to indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain the
Eurocurrency Rate Advance. In connection with any assignment by Chase or NBD of
any portion of the Loans made pursuant to Section 12.3 and made on or prior to
September 8, 1997, and if any of the Borrowers has requested the use of the
Eurocurrency Rate, such Borrower shall be deemed to have repaid all outstanding
Eurocurrency Rate Advances as of such date and reborrowed such amount as a Base
Rate Advance and/or
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Eurocurrency Rate Advance (chosen in accordance with the provisions of Section
2.4) and the indemnification provisions under this Section 3.4 shall apply.
3.5 Lender Statements; Survival of Indemnity. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurocurrency Rate Loans to reduce any liability of Holdings to such Lender
under Sections 3.1 and 3.2 or to avoid the unavailability of a Type of Advance
under Section 3.3, so long as such designation is not disadvantageous to such
Lender. Each Lender requiring compensation pursuant to Section 2.15(E) or to
this Article III shall use its best efforts to notify Holdings and the
Administrative Agent in writing of any Change, law, policy, rule, guideline or
directive giving rise to such demand for compensation not later than ninety (90)
days following the date upon which the responsible account officer of such
Lender knows or should have known of such Change, law, policy, rule, guideline
or directive. Any demand for compensation pursuant to this Article III shall be
in writing and shall state the amount due, if any, under Section 3.1, 3.2 or 3.4
and shall set forth in reasonable detail the calculations upon which such Lender
determined such amount. Such written demand shall be rebuttably presumed correct
for all purposes. Notwithstanding anything in this Agreement to the contrary,
neither Holdings nor any of the other Borrowers shall be obligated to pay any
amount or amounts under Section 2.15(E) or this Article III to the extent such
amount or amounts result from a Change, law, policy, rule, guideline or
directive which took effect more than 120 days prior to the date of delivery of
the notice described above. Determination of amounts payable under such Sections
in connection with a Eurocurrency Rate Loan shall be calculated as though each
Lender funded its Eurocurrency Rate Loan through the purchase of a deposit of
the type, currency and maturity corresponding to the deposit used as a reference
in determining the Eurocurrency Rate applicable to such Loan, whether in fact
that is the case or not. The obligations of the Borrowers under Sections 3.1,
3.2 and 3.4 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV: CONDITIONS PRECEDENT
4.1 Initial Advances and Letters of Credit. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless the
Borrowers have furnished to the Administrative Agent, with sufficient copies for
the Lenders, such documents as the Administrative Agent or any Lender or its
counsel may have reasonably requested, including, without limitation, all of the
documents reflected on the List of Closing Documents attached as Exhibit G to
this Agreement (other than those designated to be delivered post-closing).
4.2 Each Advance and Letter of Credit. Except as expressly provided in
Sections 2.5(B)(i)(f) and 2.23, the Lenders shall not be required to make any
Advance and the Issuing Lender shall not be required to issue any Letter of
Credit, unless on the applicable Borrowing Date, or in the case of a Letter of
Credit, the date on which the Letter of Credit is to be issued:
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(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in Article V
are true and correct in all material respects as of such Borrowing
Date, except for representations and warranties made with reference to
a specific date which representations and warranties shall be true and
correct in all material respects as of such date, and except for
amendments to the Schedules made pursuant to the provisions of Section
1.3.
Each Borrowing Notice with respect to each such Advance and the letter
of credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) will have been satisfied as of the date of such Advance
or the issuance of such Letter of Credit. Any Lender may require a duly
completed officer's certificate in substantially the form of Exhibit H hereto
and/or a duly completed compliance certificate in substantially the form of
Exhibit I hereto as a condition to making an Advance.
ARTICLE V: REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and the other financial accommodations
to the Borrowers and in order to induce the Issuing Lender to issue the Letters
of Credit described herein, each of the Borrowers represents and warrants as
follows to each Lender and the Administrative Agent as of the Effective Date and
thereafter on each date as required by Section 4.2:
5.1 Organization; Powers. Each of the Borrowers and each of their
respective Subsidiaries (i) is a duly organized limited liability company or
corporation, as applicable, validly existing and, with respect to U.S.
Borrowers, in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified to do business as a foreign company or
corporation and is in good standing under the laws of each jurisdiction in which
failure to be so qualified and in good standing could have a Material Adverse
Effect, (iii) has timely filed and maintained effective (unless exempt from the
requirements for filing) a current Business Activity Report with the appropriate
Governmental Authority in the States in which it is required to do so, and (iv)
has all requisite power and authority to own, operate and encumber its property
and to conduct its business as presently conducted giving effect to the Valley
Acquisition and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement.
5.2 Authority.
(A) Each of the Borrowers and each of their respective Subsidiaries has
the requisite power and authority (i) to execute, deliver and perform each of
the Transaction Documents which
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are to be executed by it in connection with the Valley Acquisition or which have
been executed by it as required by this Agreement on or prior to the Effective
Date and (ii) to file the Transaction Documents which must be filed by it in
connection with the Valley Acquisition or which have been filed by it as
required by this Agreement on or prior to the Effective Date with any
Governmental Authority.
(B) The execution, delivery, performance and filing, as the case may
be, of each of the Transaction Documents which must be executed or filed by any
of the Borrowers or any other Subsidiary of Holdings in connection with the
Valley Acquisition or which have been executed or filed as required by this
Agreement on or prior to the Effective Date and to which any of the Borrowers or
any other Subsidiary of Holdings is party, and the consummation of the
transactions contemplated thereby, have been duly approved, to the extent
required, by the respective boards of managers or directors, as applicable, and,
if necessary, the members or shareholders or workers' councils of the applicable
Borrower or Subsidiary, as applicable, and such approvals have not been
rescinded. No other action or proceedings on the part of any Borrower or any
other Person are necessary to consummate such transactions.
(C) Each of the Transaction Documents to which any of the Borrowers or
any other Subsidiary of Holdings is a party has been duly executed, delivered or
filed, as the case may be, by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditor's rights generally), is in full force and
effect and no material term or condition thereof has been amended, modified or
waived from the terms and conditions contained in the Transaction Documents
delivered to the Administrative Agent pursuant to Section 4.1 without the prior
written consent of the Required Lenders, and each of the Borrowers or each other
Subsidiary of Holdings have, and, to the best of such Borrower's or Subsidiary's
knowledge, all other parties thereto have performed and complied with all the
terms, provisions, agreements and conditions set forth therein and required to
be performed or complied with by such parties on or before the Effective Date,
and no unmatured default, default or breach of any covenant by any such party
exists thereunder.
5.3 No Conflict; Governmental Consents. The execution, delivery and
performance of each of the Loan Documents and other Transaction Documents to
which any of the Borrowers or any other Subsidiary of Holdings is a party do not
and will not (i) conflict with the documents of organization or governance of
such Borrower or Subsidiary (ii) constitute tortious interference with any
Contractual Obligation of any Person or conflict with, result in a breach of or
constitute (with or without notice or lapse of time or both) a default under any
Requirement of Law (including, without limitation, any Environmental Property
Transfer Act) or Contractual Obligation of any Borrower or any such Subsidiary,
or require termination of any Contractual Obligation, except such interference,
breach, default or termination which individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect or to subject the
Administrative Agent, any of the Lenders or the Issuing Lender to any liability,
(iii) with respect
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to the Loan Documents and, to the best of each Borrower's and each Subsidiary's
knowledge with respect to the other Transaction Documents, result in or require
the creation or imposition of any Lien whatsoever upon any of the property or
assets of any Borrower or any such Subsidiary, other than Liens permitted by the
Loan Documents, or (iv) require any approval of the Borrower's or any such
Subsidiary's members or shareholders except such as have been obtained. Except
as set forth on Schedule 5.3 to this Agreement, the execution, delivery and
performance of each of the Transaction Documents to which any Borrower or any
other Subsidiary is a party do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by any
Governmental Authority, including under any Environmental Property Transfer Act,
except (i) filings, consents or notices which have been or, in the case of any
of the foregoing, not required prior to the Effective Date, will be made,
obtained or given, or which, if not made, obtained or given, individually or in
the aggregate would not reasonably be expected to have a Material Adverse
Effect, and (ii) filings necessary to create or perfect security interests in
the Collateral.
5.4 Financial Statements. The pro forma financial statements of
Holdings and its Subsidiaries, copies of which are attached hereto as Exhibit J,
present on an estimated pro forma basis the financial condition of Holdings and
such Subsidiaries as of June 30, 1997, as if the Valley Acquisition and the
other transactions contemplated hereby had been consummated as of such date, and
reflect on a pro forma basis those liabilities reflected in the notes thereto
and resulting from consummation of the Valley Acquisition and the transactions
contemplated by this Agreement, and the payment or accrual of all Transaction
Costs payable on the Effective Date with respect to any of the foregoing. The
projections and assumptions expressed in the pro forma financials referenced in
this Section 5.4 were prepared in good faith and represent management's opinion
based on the information available to Holdings at the time so furnished.
5.5 No Material Adverse Change. (a) Since December 31, 1996 up to the
Effective Date, there has occurred no change in the business, properties,
condition (financial or otherwise) or results of operations of (i) Holdings and
its Subsidiaries taken as a whole or (ii) Valley Industries, Inc. or any other
event which has had or is reasonably likely to have a Material Adverse Effect.
(b) Since the Effective Date, there has occurred no change in the
business, properties, condition (financial or otherwise) or results of
operations of Holdings and its Subsidiaries taken as a whole or any other event
which has had or is reasonably likely to have a Material Adverse Effect.
5.6 Taxes.
(A) Tax Examinations. All deficiencies which have been asserted against
Holdings or any of Holdings' Subsidiaries as a result of any federal, state,
local or foreign tax examination for each taxable year in respect of which an
examination has been conducted have been fully paid or finally settled or are
being contested in good faith, and as of the Effective Date no issue has been
raised
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by any taxing authority in any such examination which, by application of similar
principles, reasonably can be expected to result in assertion by such taxing
authority of a material deficiency for any other year not so examined which has
not been reserved for in Holdings' consolidated financial statements to the
extent, if any, required by Agreement Accounting Principles. Except as permitted
pursuant to Section 6.2(D), neither Holdings nor any of Holdings' Subsidiaries
anticipates any material tax liability with respect to the years which have not
been closed pursuant to applicable law.
(B) Payment of Taxes. All tax returns and reports of each of Holdings,
AAS, Brink and Holdings' other Subsidiaries required to be filed have been
timely filed, and all taxes, assessments, fees and other governmental charges
thereupon and upon their respective property, assets, income and franchises
which are shown in such returns or reports to be due and payable have been paid
except those items which are being contested in good faith and have been
reserved for in accordance with Agreement Accounting Principles. Holdings has no
knowledge of any proposed tax assessment against Holdings, AAS, Brink or any of
Holdings' other Subsidiaries that will have or is reasonably likely to have a
Material Adverse Effect.
5.7 Litigation; Loss Contingencies and Violations. Except as set forth
in Schedules 5.7 and 5.18 to this Agreement, there is no action, suit,
proceeding, investigation of which Holdings has knowledge or arbitration before
or by any Governmental Authority or private arbitrator pending or, to the
knowledge of Holdings or any of its Subsidiaries, threatened against Holdings or
any of its Subsidiaries or any property of any of them (i) challenging the
validity or the enforceability of any material provision of the Transaction
Documents or (ii) which will have or is reasonably likely to have a Material
Adverse Effect. There is no material loss contingency within the meaning of
Agreement Accounting Principles which has not been reflected in the consolidated
financial statements of Holdings prepared and delivered pursuant to Section
6.1(A) for the fiscal period during which such material loss contingency was
incurred. Neither Holdings nor any of its Subsidiaries is (A) in violation of
any applicable Requirements of Law which violation will have or is reasonably
likely to have a Material Adverse Effect, or (B) subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority
which will have or is reasonably likely to have a Material Adverse Effect.
5.8 Subsidiaries. Schedule 5.8 to this Agreement (i) contains a
description (both narratively and in flow chart form) of the corporate structure
of Holdings, Holding's Subsidiaries and any other Person in which Holdings or
any of its Subsidiaries holds an equity interest; and (ii) accurately sets forth
(A) the correct legal name, the jurisdiction of organization or incorporation
and the jurisdictions in which each Borrower and the direct and indirect
Subsidiaries of Holdings is qualified to transact business as a foreign company
or corporation, (B) the authorized, issued and outstanding shares of each class
of Capital Stock of each entity referred to above that is a corporation and the
owners of such shares (both as of the Closing Date and on a
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fully-diluted basis), and (C) a summary of the direct and indirect ownership,
membership, partnership, joint venture, or other equity interests, if any, of
Holdings and each Subsidiary of Holdings in any Person that is not a
corporation.
5.9 ERISA. No Benefit Plan has incurred any accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code)
whether or not waived. Neither Holdings nor any member of the Controlled Group
has incurred any liability to the PBGC which remains outstanding other than the
payment of premiums, and there are no premium payments which have become due
which are unpaid. Schedule B to the most recent annual report filed with the IRS
with respect to each Benefit Plan and furnished to the lenders is complete and
accurate. Since the date of each such Schedule B, there has been no material
adverse change in the funding status or financial condition of the Benefit Plan
relating to such Schedule B. Neither Holdings nor any member of the Controlled
Group has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan. Neither Holdings nor any member
of the Controlled Group has failed to make a required installment or any other
required payment under Section 412 of the Code on or before the due date for
such installment or other payment. Neither Holdings nor any member of the
Controlled Group is required to provide security to a Benefit Plan under Section
401(a)(29) of the Code due to a Plan amendment that results in an increase in
current liability for the plan year. Neither Holdings nor any of its
Subsidiaries maintains or contributes to any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA which provides benefits to employees
after termination of employment other than as required by Section 601 of ERISA.
Each Plan which is intended to be qualified under Section 401(a) of the Code as
currently in effect is so qualified, and each trust related to any such Plan is
exempt from federal income tax under Section 501(a) of the Code as currently in
effect. Holdings and all Subsidiaries are in compliance in all material respects
with the responsibilities, obligations and duties imposed on them by ERISA and
the Code with respect to all Plans. Neither Holdings nor any of its Subsidiaries
nor any fiduciary of any Plan has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Code which could reasonably be
expected to subject Holdings to liability in excess of $500,000. Neither
Holdings nor any member of the Controlled Group has taken or failed to take any
action which would constitute or result in a Termination Event, which action or
inaction could reasonably be expected to subject Holdings to liability in excess
of $500,000. Neither Holdings nor any Subsidiary is subject to any liability
under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA and no other member of
the Controlled Group is subject to any liability under Sections 4063, 4064,
4069, 4204 or 4212(c) of ERISA which could reasonably be expected to subject
Holdings to liability in excess of $500,000. Neither Holdings nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement.
5.10 Accuracy of Information. The information, exhibits and reports
furnished by or on behalf of Holdings and any of its Subsidiaries to the
Administrative Agent or to any Lender in
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connection with the negotiation of, or compliance with, the Loan Documents,
including, without limitation, the Confidential Information Memorandum dated
July, 1997 prepared by Holdings, the representations and warranties of Holdings
and its Subsidiaries contained in the Loan Documents, and all certificates and
documents delivered to the Administrative Agent and the Lenders pursuant to the
terms thereof do not contain as of the date furnished any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
5.11 Securities Activities. Neither Holdings nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
5.12 Material Agreements. Neither Holdings nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
contractual or corporate restriction which will have or is reasonably likely to
have a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries has
received notice or has knowledge that (i) it is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any Contractual Obligation applicable to it, or (ii) any condition
exists which, with the giving of notice or the lapse of time or both, would
constitute a default with respect to any such Contractual Obligation, in each
case, except where such default or defaults, if any, will not have or are not
reasonably likely to have a Material Adverse Effect.
5.13 Compliance with Laws. Holdings and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate will have or is reasonably likely to have a Material Adverse Effect.
5.14 Assets and Properties. Holdings and each of its Subsidiaries has
good and marketable title to all of its assets and properties (tangible and
intangible, real or personal) owned by it or a valid leasehold interest in all
of its leased assets (except insofar as marketability may be limited by any laws
or regulations of any Governmental Authority affecting such assets), and all
such assets and property are free and clear of all Liens, except Liens securing
the Obligations and Liens permitted under Section 6.3(C). Substantially all of
the assets and properties owned by, leased to or used by Holdings and/or each
such Subsidiary of Holdings are in adequate operating condition and repair,
ordinary wear and tear excepted. Except for Liens granted to the Administrative
Agent for the benefit of the Administrative Agent and the Holders of Secured
Obligations, neither this Agreement nor any other Transaction Document, nor any
transaction contemplated under any such agreement, will affect any right, title
or interest of Holdings or such Subsidiary in and to any of such assets in a
manner that will have or is reasonably likely to have a Material Adverse Effect.
5.15 Statutory Indebtedness Restrictions. Neither Holdings, nor any of
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal
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or state statute or regulation which limits its ability to incur indebtedness or
its ability to consummate the transactions contemplated hereby or in connection
with the Valley Acquisition.
5.16 Post-Retirement Benefits. As of the Effective Date, Holdings and
its Subsidiaries have no expected cost of post-retirement medical and insurance
benefits payable by Holdings or its Subsidiaries to its employees and former
employees, as estimated by the Borrower in accordance with Financial Accounting
Standards Board Statement No. 106.
5.17 Insurance. Schedule 5.17 to this Agreement accurately sets forth
as of the Effective Date all insurance policies and programs currently in effect
with respect to the respective properties and assets and business of Holdings
and its Subsidiaries, specifying for each such policy and program, (i) the
amount thereof, (ii) the risks insured against thereby, (iii) the name of the
insurer and each insured party thereunder, (iv) the policy or other
identification number thereof, (v) the expiration date thereof, (vi) the annual
premium with respect thereto and (vii) describes any reserves, relating to any
self-insurance program that is in effect. Such insurance policies and programs
reflect coverage that is reasonably consistent with prudent industry practice.
5.18 Contingent Obligations. Except as set forth on Schedule 5.18 to
this Agreement, neither Holdings nor any of its Subsidiaries has any Contingent
Obligation, contingent liability, long-term lease, synthetic lease or
commitment, not reflected in the pro forma financial statements attached hereto
as Exhibit J or otherwise disclosed to the Administrative Agent and the Lenders
in the other Schedules to this Agreement, which could reasonably be expected to
subject Holdings to liability in excess of $1,000,000.
5.19 Restricted Junior Payments. Neither Holdings nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made or set
apart any sum or properties for any Restricted Junior Payment or agreed to do
so, except to the extent not prohibited pursuant to Section 6.3(F) of this
Agreement.
5.20 Labor Matters.
(A) Except as listed on Schedule 5.20 to this Agreement, there are on
the Effective Date no collective bargaining agreements, other labor agreements
or Multiemployer Plans covering any of the employees of Holdings or any of its
Subsidiaries. As of the Effective Date, no labor disputes, strikes or walkouts
affecting the operations of Holdings or any of its Subsidiaries, is pending, or,
to Holdings' knowledge, threatened, planned or contemplated.
(B) Set forth in Schedule 5.20 to this Agreement is a list, as of the
Effective Date, of all material consulting agreements, executive compensation
plans, deferred compensation agreements, employee pension plans or retirement
plans, employee profit sharing plans, employee stock purchase and stock option
plans, severance plans, group life insurance, hospitalization
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insurance or other plans or arrangements of Holdings, AAS and Valley providing
for benefits for employees of Holdings, AAS and Valley.
5.21 The Valley Acquisition.
As of the Effective Date and immediately prior to the making of the
Loans hereunder to be made on the Effective Date:
(i) the Acquisition Documents are in full force and effect, no
material breach, default or waiver of any term or provision of any of
the Acquisition Documents by Holdings or any of its Subsidiaries or, to
the best of Holdings' knowledge, the other parties thereto has occurred
(except for such breaches, defaults and waivers, if any, consented to
in writing by the Administrative Agent) and no action has been taken by
any competent authority which restrains, prevents or imposes any
material adverse condition upon, or seeks to restrain, prevent or
impose any material adverse condition upon, the Valley Acquisition;
(ii) the representations and warranties of each of Holdings
and its Subsidiaries contained in the Acquisition Documents, if any,
are true and correct in all material respects;
(iii) the Valley Acquisition was consummated in accordance
with the Acquisition Documents.
5.22 Environmental Matters. (a) Except as disclosed on Schedule
5.22 to this Agreement
(i) the operations of Holdings and its Subsidiaries comply in
all material respects with Environmental, Health or Safety Requirements
of Law;
(ii) Holdings and its Subsidiaries have all material permits,
licenses or other authorizations required under Environmental, Health
or Safety Requirements of Law and are in material compliance with such
permits;
(iii) neither Holdings, any of its Subsidiaries nor any of
their respective present property or operations, or, to the best of,
Holdings' or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the subject
of, any investigation known to Holdings or any of its Subsidiaries, any
judicial or administrative proceeding, order, judgment, decree,
settlement or other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material
remedial action; or (C) any material claims or liabilities arising from
the Release or threatened Release of a Contaminant into the
environment;
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(iv) there is not now, nor to the best of Holdings' or any of
its Subsidiaries' knowledge has there ever been on or in the property
of Holdings or any of its Subsidiaries any material landfill, waste
pile, underground storage tanks, aboveground storage tanks, surface
impoundment or hazardous waste storage facility of any kind,
polychlorinated biphenyls (PCBs) used in hydraulic oils, electric
transformers or other equipment, or asbestos-containing material; and
(v) neither Holdings nor any of its Subsidiaries has any
material Contingent Obligation or material contingent liability in
connection with any Release or threatened Release of a Contaminant into
the environment.
(b) For purposes of this Section 5.22 "material" means any
noncompliance or basis for liability which could reasonably be likely to subject
Holdings to liability in excess of $1,000,000.
5.23 Capitalization.
As of the Effective Date and immediately prior to and
following the funding of the Loans to be funded on the Effective Date, the
subordination provisions of the Subordinated Note Agreement are enforceable
against the holders of the Subordinated Notes, the subordination provisions of
the Seller Note are enforceable against the holder of the Seller Note, and the
Secured Obligations are within the definition of "Senior Debt" as defined in the
Subordination Agreement and the Seller Note.
5.24 Solvency. After giving effect to the (i) Loans to be made on the
Effective Date or such other date as Loans requested hereunder are made, (ii)
the disbursement of the proceeds of such Loans pursuant to Holdings'
instructions, and (iii) the transactions contemplated by the Acquisition
Agreement and (iv) the payment and accrual of all Transaction Costs with respect
to the foregoing, Holdings and its Subsidiaries taken as a whole is Solvent.
5.25 Foreign Employee Benefit Matters. Each Foreign Employee Benefit
Plan is in compliance in all respects with all laws, regulations and rules
applicable thereto and the respective requirements of the governing documents
for such Plan, except for any non-compliance the consequences of which, in the
aggregate, would not result in a material obligation to pay money. The aggregate
of the accumulated benefit obligations under all Foreign Pension Plans does not
exceed the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans or reasonable reserves have been established in
accordance with prudent business practices or as required by Agreement
Accounting Principles with respect to any shortfall. With respect to any Foreign
Employee Benefit Plan maintained or contributed to by Holdings or any Subsidiary
or any member of its Controlled Group (other than a Foreign Pension Plan),
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Plan is maintained. There are no actions, suits or claims (other
than routine claims for benefits) pending or, to the knowledge of
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the Borrowers, threatened against Holdings or any Subsidiary or any ERISA
Affiliate with respect to any Foreign Employee Benefit Plan.
5.26 Dutch Withholding. As of the Effective Date, with respect to
any portion of the Loans, the interest referred to in Article II is not subject
to withholding tax in The Netherlands. If any interest referred to in Article II
due to a Dutch Bank or to the Dutch branch of a non-Dutch Bank are paid to the
Administrative Agent in accordance with the provisions of Article XI, then, as
at the Effective Date, such interest or commitment and utilization commission is
not subject to any withholding in The Netherlands. For the purposes of this
Section, a "Dutch Bank" shall mean a bank organized under the laws of The
Netherlands and a "non-Dutch Bank" shall mean a bank organized under the laws of
a country other than The Netherlands.
ARTICLE VI: COVENANTS
Each of the Borrowers covenants and agrees that so long as any
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity and reimbursement obligations),
unless the Required Lenders shall otherwise give prior written consent:
6.1 Reporting. The Borrowers shall:
(A) Financial Reporting. Furnish to the Administrative Agent (which
will furnish copies of the following to the Lenders):
(i) Monthly Reports. As soon as practicable, and in any event
within forty-five (45) days after the end of each calendar month, the
consolidated and consolidating balance sheet of Holdings and its
Subsidiaries as at the end of such period and the related consolidated
and consolidating statements of income and of cash flow of Holdings and
its Subsidiaries for such calendar month, certified by the chief
financial officer of Holdings on behalf of Holdings as fairly
presenting in all material respects the consolidated and consolidating
financial position of Holdings and its Subsidiaries as at the dates
indicated and the results of operations and cash flow for the calendar
months indicated in accordance with Agreement Accounting Principles,
subject to normal year end adjustments.
(ii) Quarterly Reports. As soon as practicable, and in any
event within forty-five (45) days after the end of each fiscal quarter
in each fiscal year, the consolidated and consolidating balance sheet
of Holdings and its Subsidiaries as at the end of such period and the
related consolidated and consolidating statements of income and cash
flow of Holdings and its Subsidiaries for such fiscal quarter and for
the period from the beginning of the then current fiscal year to the
end of such fiscal quarter and a comparison of the
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statement of earnings and cash flow to the budget, certified by the
chief financial officer of Holdings on behalf of Holdings as fairly
presenting in all material respects the consolidated and consolidating
financial position of Holdings and its Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the
periods indicated in accordance with Agreement Accounting Principles,
subject to normal year end adjustments.
(iii) Annual Reports. As soon as practicable, and in any event
within one hundred twenty (120) days after the end of each fiscal year,
(a) the consolidated and consolidating balance sheet of Holdings and
its Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income, members' equity
and cash flow of Holdings and its Subsidiaries for such fiscal year,
and, in comparative form the corresponding figures for the previous
fiscal year, (b) a schedule from Holdings setting forth for each item
in clause (a) hereof, the corresponding figures from the consolidated
financial budget for the current fiscal year delivered pursuant to
Section 6.1(A)(v), and (c) an audit report on the items (other than the
consolidating financial statements) listed in clause (a) hereof of
independent certified public accountants of recognized national
standing, which audit report shall be unqualified and shall state that
such financial statements fairly present in all material respects the
consolidated financial position of Holdings and its Subsidiaries as at
the dates indicated and the results of their operations and cash flow
for the periods indicated in conformity with Agreement Accounting
Principles and that the examination by such accountants in connection
with such consolidated financial statements has been made in accordance
with generally accepted auditing standards. The deliveries made
pursuant to this clause (iii) shall be accompanied by (y) any
management letter prepared by the above-referenced accountants and (z)
a certificate of such accountants that, in the course of their
examination necessary for their certification of the foregoing, (i)
they have obtained no knowledge of any Default or Unmatured Default, or
if, in the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof and (ii) if
a Tax Distribution has been made after the occurrence and during the
continuance of any Default or Unmatured Default, they have reviewed the
calculations of Income Tax Liabilities for such period and have
determined that the amount of the Tax Distributions for such year does
not exceed the amount permitted under Section 6.3(F).
(iv) Officer's Certificate. Together with each delivery of any
financial statement (a) pursuant to clauses (i), (ii) and (iii) of this
Section 6.1(A), an Officer's Certificate of Holdings, substantially in
the form of Exhibit H attached hereto and made a part hereof, stating
that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof and (b)
pursuant to clauses (ii) and (iii) of this Section 6.1(A), a Compliance
Certificate, substantially in the form of Exhibit I attached hereto and
made a part hereof, signed by Holdings' chief financial officer or
treasurer, setting forth calculations for the period then ended for
Section 2.5(B), if
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applicable, for Income Tax Liabilities for such period, and which
demonstrate compliance, when applicable, with the provisions of Section
6.4.
(v) Budgets; Business Plans; Financial Projections. As soon as
practicable and in any event not later than the beginning of each
fiscal year beginning with the fiscal year beginning January 1, 1998, a
copy of the plan and forecast (including a projected balance sheet,
income statement and funds flow statement) of Holdings for the upcoming
fiscal year prepared in such detail as shall be reasonably satisfactory
to the Administrative Agent.
(B) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer or
controller of Holdings obtaining knowledge (i) of any condition or event which
constitutes a Default or Unmatured Default, or becoming aware that any Lender or
Administrative Agent has given any written notice with respect to a claimed
Default or Unmatured Default under this Agreement, or (ii) that any Person has
given any written notice to Holdings or any Subsidiary of Holdings or taken any
other action with respect to a claimed default or event or condition of the type
referred to in Section 7.1(e), deliver to the Administrative Agent and the
Lenders an Officer's Certificate specifying (a) the nature and period of
existence of any such claimed default, Default, Unmatured Default, condition or
event, (b) the notice given or action taken by such Person in connection
therewith, and (c) what action Holdings has taken, is taking and proposes to
take with respect thereto.
(C) Lawsuits. (i) Promptly upon Holdings obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Holdings or any of its
Subsidiaries or any property of Holdings or any of its Subsidiaries not
previously disclosed pursuant to Section 5.7, which action, suit, proceeding,
governmental investigation or arbitration exposes, or in the case of multiple
actions, suits, proceedings, governmental investigations or arbitrations arising
out of the same general allegations or circumstances which expose, in Holdings'
reasonable judgment, Holdings or any of its Subsidiaries to liability in an
amount aggregating $1,000,000 or more (exclusive of claims covered by insurance
policies of Holdings or any of its Subsidiaries unless the insurers of such
claims have disclaimed coverage or reserved the right to disclaim coverage on
such claims and exclusive of claims covered by the indemnity of a financially
responsible indemnitor in favor of Holdings or any of its Subsidiaries (unless
the indemnitor has disclaimed or reserved the right to disclaim coverage
thereof)), give written notice thereof to the Administrative Agent on behalf of
the Lenders and provide such other information as may be reasonably available to
enable each Lender and the Administrative Agent and its counsel to evaluate such
matters; and (ii) in addition to the requirements set forth in clause (i) of
this Section 6.1(C), upon request of the Administrative Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information as may
be reasonably available to it that would not result in loss of any
attorney-client privilege by disclosure to the Lenders to enable each Lender and
the Administrative Agent and its counsel to evaluate such matters.
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(D) Insurance. As soon as practicable and in any event within one
hundred twenty (120) days of the end of each fiscal year, deliver to the
Administrative Agent and the Lenders (i) a report in form and substance
reasonably satisfactory to the Administrative Agent and the Lenders outlining
all material insurance coverage maintained as of the date of such report by
Holdings and its Subsidiaries and the duration of such coverage and (ii) an
insurance broker's statement that all premiums with respect to such coverage
have been paid when due.
(E) ERISA Notices. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at Holdings' expense, the following
information and notices as soon as reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after any Borrower
obtains knowledge that a Termination Event has occurred, a written
statement of the chief financial officer of Holdings describing such
Termination Event and the action, if any, which Holdings has taken, is
taking or proposes to take with respect thereto, and when known, any
action taken or threatened by the IRS, DOL or PBGC with respect thereto
and (b) within ten (10) Business Days after any member of the
Controlled Group obtains knowledge that a Termination Event has
occurred which could reasonably be expected to subject Holdings to
liability in excess of $250,000, a written statement of the chief
financial officer of Holdings describing such Termination Event and the
action, if any, which the member of the Controlled Group has taken, is
taking or proposes to take with respect thereto, and when known, any
action taken or threatened by the IRS, DOL or PBGC with respect
thereto;
(ii) within ten (10) Business Days after Holdings or any of
its Subsidiaries obtains knowledge that a prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred, a statement of the chief financial officer of Holdings
describing such transaction and the action which Holdings or such
Subsidiary has taken, is taking or proposes to take with respect
thereto;
(iii) within ten (10) Business Days after any material
increase in the benefits of any existing Plan or the establishment of
any new Benefit Plan or the commencement of, or obligation to commence,
contributions to any Benefit Plan or Multiemployer Plan to which
Holdings or any member of the Controlled Group was not previously
contributing, notification of such increase, establishment,
commencement or obligation to commence and the amount of such
contributions;
(iv) within ten (10) Business Days after Holdings or any of
its Subsidiaries receives notice of any unfavorable determination
letter from the IRS regarding the qualification of a Plan under Section
401(a) of the Code, copies of each such letter;
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(v) within thirty (30) Business Days after the establishment
of any Foreign Employee Benefit Plan or the commencement of, or
obligation to commence, contributions to any Foreign Employee Benefit
Plan to which Holdings or any Subsidiary was not previously
contributing, notification of such establishment, commencement or
obligation to commence and the amount of such contributions;
(vi) within ten (10) Business Days after the filing thereof
with the IRS, a copy of each funding waiver request filed with respect
to any Benefit Plan and all communications received by Holdings or a
member of the Controlled Group with respect to such request;
(vii) within ten (10) Business Days after receipt by Holdings
or any member of the Controlled Group of the PBGC's intention to
terminate a Benefit Plan or to have a trustee appointed to administer a
Benefit Plan, copies of each such notice;
(viii) within ten (10) Business Days after receipt by Holdings
or any member of the Controlled Group of a notice from a Multiemployer
Plan regarding the imposition of withdrawal liability, copies of each
such notice;
(ix) within ten (10) Business Days after Holdings or any
member of the Controlled Group fails to make a required installment or
any other required payment under Section 412 of the Internal Revenue
Code on or before the due date for such installment or payment, a
notification of such failure; and
(x) within ten (10) Business Days after Holdings or any member
of the Controlled Group knows or has reason to know that (a) a
Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer
Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan.
For purposes of this Section 6.1(E), Holdings, any of its Subsidiaries and any
member of the Controlled Group shall be deemed to know all facts known by the
Administrator of any Plan of which the Borrower or any member of the Controlled
Group or such Subsidiary is the plan sponsor.
(F) Labor Matters. Notify the Administrative Agent and the Lenders in
writing, promptly upon Holdings' or any of its Subsidiaries' learning thereof,
of (i) any labor dispute to which Holdings or any of its Subsidiaries may become
a party, including, without limitation, any strikes, lockouts or other disputes
relating to such Persons' plants and other facilities and (ii) any Worker
Adjustment and Retraining Notification Act liability incurred with respect to
the closing of any plant or other facility of Holdings or any of its
Subsidiaries where, in the case of (i) or (ii), such is reasonably likely to
have a Material Adverse Effect.
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(G) Other Indebtedness. Deliver to the Administrative Agent (i) a copy
of each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officers' certificate) delivered by or on
behalf of Holdings to the holders of Indebtedness for money borrowed pursuant to
the terms of the agreements governing such Indebtedness, such delivery to be
made at the same time and by the same means as such notice or other
communication is delivered to such holders, and (ii) a copy of each notice or
other communication received by Holdings from the holders of Indebtedness for
money borrowed pursuant to the terms of such Indebtedness, such delivery to be
made promptly after such notice or other communication is received by Holdings.
(H) Other Reports. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of all financial statements, reports
and notices, if any, sent or made available generally by Holdings to owners of
ownership, membership or other equity interests in Holdings or filed with the
Commission by Holdings, all press releases made available generally by Holdings
or any of Holdings' Subsidiaries to the public concerning material developments
in the business of Holdings or any such Subsidiary and all notifications
received from the Commission by Holdings or its Subsidiaries pursuant to the
Securities Exchange Act and the rules promulgated thereunder.
(I) Environmental Notices. As soon as possible and in any event within
ten (10) days after receipt by Holdings or any of its Subsidiaries, a copy of
(i) any notice or claim to the effect that Holdings or any of its Subsidiaries
is or may be liable to any Person as a result of the Release by Holdings, any of
its Subsidiaries, or any other Person of any Contaminant into the environment,
and (ii) any notice alleging any violation of any Environmental, Health or
Safety Requirements of Law by Holdings or any of its Subsidiaries if, in either
case, such notice or claim relates to an event which could reasonably be
expected to subject Holdings or any of its Subsidiaries to liability in excess
of $500,000.
(J) Borrowing Base Certificate. As soon as practicable, and in any
event within thirty (30) days after the close of each calendar month (and more
often if requested by the Administrative Agent, the Documentation and Collateral
Agent or the Required Lenders but no more often than once weekly for so long as
no Default has occurred and is continuing), Holdings shall provide the
Administrative Agent, the Documentation and Collateral Agent and the Lenders
with a Borrowing Base Certificate, together with such supporting documents as
the Administrative Agent or the Documentation and Collateral Agent deems
desirable, all certified as being true and correct by the chief financial
officer or treasurer of Holdings. Holdings may update the Borrowing Base
Certificate and supporting documents more frequently than monthly and the most
recently delivered Borrowing Base Certificate shall be the applicable Borrowing
Base Certificate for purposes of determining the Borrowing Base at any time.
(K) Other Information. Promptly upon receiving a request therefor from
the Administrative Agent, prepare and deliver to the Administrative Agent and
the Lenders such other information with respect to Holdings, any of its
Subsidiaries, or the Collateral, including, without
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limitation, schedules identifying and describing the Collateral and any
dispositions thereof or any Asset Sale (and the use of the Net Cash Proceeds
thereof), as from time to time may be reasonably requested by the Administrative
Agent or the Documentation and Collateral Agent.
6.2 Affirmative Covenants.
(A) Existence, Etc. Holdings shall, and shall cause each of its
Subsidiaries to, at all times maintain its existence and preserve and keep, or
cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses except that any Subsidiary of Holdings may
merge with or liquidate into Holdings or any other Subsidiary of Holdings,
provided that the surviving entity expressly assumes any liabilities, if any, of
either of such Subsidiaries with respect to the Obligations pursuant to an
assumption agreement reasonably satisfactory to the Administrative Agent and
provided further that the consolidated net worth of the surviving corporation is
not less than the consolidated net worth of the Subsidiary with any liability
with respect to the Obligations immediately prior to such merger and any limited
liability company other than Holdings can elect to terminate its existence and
Holdings can merge or liquidate into a corporation that expressly assumes
Holdings' liabilities with respect to the Obligations pursuant to an assumption
agreement reasonably satisfactory to the Administrative Agent provided the
consolidated net worth of such corporation following such merger is not less
than the consolidated net worth of Holdings immediately prior to such merger.
(B) Powers. Holdings shall, and shall cause each of its Subsidiaries to
qualify and remain qualified to do business in each jurisdiction in which the
nature of its business requires it to be so qualified and where the failure to
be so qualified will have or is reasonably likely to have a Material Adverse
Effect.
(C) Compliance with Laws, Etc. Holdings shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all Permits necessary for
its operations and maintain such Permits in good standing unless failure to
comply or obtain could not reasonably be anticipated to have a Material Adverse
Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. Holdings shall pay,
and cause each of its Subsidiaries to pay, (i) all taxes, assessments and other
governmental charges imposed upon it or on any of its properties or assets or in
respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 6.3(C)) upon any of Holdings' or such
Subsidiary's property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that no such taxes,
assessments and governmental charges referred to in clause (i) above or claims
referred to in clause (ii) above (and interest, penalties or fines relating
thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or
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other appropriate provision, if any, as shall be required in conformity with
Agreement Accounting Principles shall have been made therefor. Holdings will not
permit any of its Subsidiaries to file or consent to the filing of any
consolidated income tax return with any Person other than Holdings or any of its
Subsidiaries.
(E) Insurance. Holdings shall maintain for itself and its Subsidiaries,
or shall cause each of its Subsidiaries to maintain in full force and effect the
insurance policies and programs listed on Schedule 5.17 to this Agreement or
substantially similar policies and programs or other policies and programs as
reflect coverage that is reasonably consistent with prudent industry practice.
Holdings shall deliver to the Administrative Agent endorsements (y) to all "All
Risk" physical damage insurance policies on all of the Borrowers' tangible real
and personal property and assets and business interruption insurance policies
naming the Documentation and Collateral Agent loss payee, and (z) to all general
liability and other liability policies naming the Administrative Agent an
additional insured. In the event Holdings, at any time or times hereafter shall
fail to obtain or maintain any of the policies or insurance required herein or
to pay any premium in whole or in part relating thereto, then the Administrative
Agent, without waiving or releasing any obligations or resulting Default
hereunder, may at any time or times thereafter (but shall be under no obligation
to do so) obtain and maintain such policies of insurance and pay such premiums
and take any other action with respect thereto which the Administrative Agent
deems advisable. All sums so disbursed by the Administrative Agent shall
constitute part of the Obligations, payable as provided in this Agreement.
(F) Inspection of Property; Books and Records; Discussions. Holdings
shall permit, and cause each of Holdings' Subsidiaries to permit, any authorized
representative(s) designated by either the Administrative Agent or any Lender to
visit and inspect any of the properties of Holdings or any of its Subsidiaries,
to examine, audit, check and make copies of their respective financial and
accounting records, books, journals, orders, receipts and any correspondence and
other data relating to their respective businesses or the transactions
contemplated hereby and by the Valley Acquisition (including, without
limitation, in connection with environmental compliance, hazard or liability),
and to discuss their affairs, finances and accounts with their officers and
independent certified public accountants, all upon reasonable notice and at such
reasonable times during normal business hours, as often as may be reasonably
requested; provided, the Administrative Agent and the Lenders shall not retain
independent accountants to conduct an accounting audit pursuant to the
provisions of this Section unless a Default or Unmatured Default shall have
occurred and be continuing. Holdings shall keep and maintain, and cause each of
Holdings' Subsidiaries to keep and maintain, in all material respects, proper
books of record and account in which entries in conformity with Agreement
Accounting Principles shall be made of all dealings and transactions in relation
to their respective businesses and activities, including, without limitation,
transactions and other dealings with respect to the Collateral. If a Default has
occurred and is continuing, Holdings, upon the Administrative Agent's request,
shall turn over any such records to the Administrative Agent or its
representatives.
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(G) Insurance and Condemnation Proceeds. Holdings directs (and, if
applicable, shall cause its Subsidiaries to direct) all insurers under policies
of property damage, boiler and machinery and business interruption insurance and
payors of any condemnation claim or award relating to the property to pay all
proceeds payable under such policies or with respect to such claim or award for
any loss with respect to the Collateral directly to the Documentation and
Collateral Agent, for the benefit of the Documentation and Collateral Agent and
the Holders of the Secured Obligations; provided, however, in the event that
such proceeds or award are less than $100,000 ("EXCLUDED PROCEEDS"), unless a
Default shall have occurred and be continuing, the Documentation and Collateral
Agent shall remit such Excluded Proceeds to Holdings. Each such policy shall
contain a long-form loss-payable endorsement naming the Documentation and
Collateral Agent as loss payee, which endorsement shall be in form and substance
acceptable to the Documentation and Collateral Agent. The Documentation and
Collateral Agent shall, upon receipt of such proceeds (other than Excluded
Proceeds) and at Holdings' direction, either remit such proceeds to the
Administrative Agent which will apply the same to the principal amount of the
Revolving Loans outstanding at the time of such receipt and create a
corresponding reserve against Revolving Credit Availability in an amount equal
to such application (the "INSURANCE RESERVE") or hold them as cash collateral
for the Obligations. For up to 180 days from the date of any loss (the "DECISION
PERIOD"), Holdings may notify the Documentation and Collateral Agent that it
intends to restore, rebuild or replace the property subject to any insurance
payment or condemnation award and shall, as soon as practicable thereafter,
provide the Documentation and Collateral Agent detailed information, including a
construction schedule and cost estimates. Should a Default occur at any time
during the Decision Period, should Holdings notify the Documentation and
Collateral Agent that it has decided not to rebuild or replace such property
during the Decision Period, or should Holdings fail to notify the Documentation
and Collateral Agent of Holdings' decision during the Decision Period, then the
amounts held as cash collateral pursuant to this Section 6.2(G) or as the
Insurance Reserve shall, at the option of the Required Lenders, be applied as a
mandatory prepayment of the Term Loans pursuant to Section 2.5(B). Proceeds held
as cash collateral pursuant to this Section 6.2(G) or constituting the Insurance
Reserve shall be disbursed as payments for restoration, rebuilding or
replacement of such property as such amounts become due; provided, however,
should a Default occur after Holdings has notified the Documentation and
Collateral Agent that it intends to rebuild or replace the property, the
Insurance Reserve or amounts held as cash collateral may, or shall, upon the
Required Lenders' direction, be applied as a mandatory prepayment of the Term
Loans pursuant to Section 2.5(B). In the event the Insurance Reserve is to be
applied as a mandatory prepayment to the Term Loans, Holdings shall be deemed to
have requested Revolving Loans in an amount equal to the Insurance Reserve, and
such Loans shall be made regardless of any failure of Holdings to meet the
conditions precedent set forth in Article IV. Upon completion of the
restoration, rebuilding or replacement of such property, the unused proceeds
shall constitute Net Cash Proceeds of an Asset Sale and shall be applied as a
mandatory prepayment of the Term Loans pursuant to Section 2.5(B). Proceeds of
insurance with respect to non-U.S. assets will be applied only to Loans made to
a non-U.S. Borrower.
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(H) ERISA Compliance. Holdings shall, and shall cause each of Holdings'
U.S. Subsidiaries to, establish, maintain and operate all Plans to comply in all
material respects with the provisions of ERISA, the Code, all other applicable
laws, and the regulations and interpretations thereunder and the respective
requirements of the governing documents for such Plans.
(I) Maintenance of Property. Holdings shall cause all property used or
useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in adequate condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of Holdings may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section 6.2(I) shall prevent Holdings from discontinuing
the operation or maintenance of any of such property if such discontinuance is,
in the judgment of Holdings, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Administrative Agent or the Lenders.
(J) Environmental Compliance. Holdings and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject
Holdings and its Subsidiaries to liability, individually or in the aggregate, in
excess of $500,000 (excluding amounts covered by indemnity claims that are not
in dispute).
(K) Use of Proceeds. Holdings shall use the proceeds of the Loans to
effect the Valley Acquisition, to pay Transaction Costs, and to provide funds
for the working capital needs and other general corporate purposes of the
Borrowers and to repay outstanding Indebtedness. Holdings will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Loans to purchase or
carry any "Margin Stock" or to make any Acquisition, other than the Valley
Acquisition and any Permitted Acquisition pursuant to Section 6.3(G).
(L) Interest Rate Agreements. Within one hundred eighty (180) days
after the Effective Date, Holdings shall enter or AAS or Valley shall have
entered into, and shall thereafter maintain, Interest Rate Agreements on terms
and with counterparties determined by Holdings and reasonably acceptable to the
Administrative Agent. In the event a Lender elects to enter into any Interest
Rate Agreement with Holdings, the obligations of Holdings with respect to such
Interest Rate Agreement shall be Secured Obligations secured by the Collateral.
(M) High Yield Offering. On or before December 31, 1997, Holdings
either (i) will effect an offering of Subordinated Notes in an aggregate
principal amount of not less than $100,000,000 pursuant to the High Yield Note
Agreement which shall contain terms, including, without limitation, terms with
respect to amount, maturity, amortization, interest rate, premiums, fees,
redemption, covenants, subordination terms, events of default and remedies
satisfactory to the Lenders or (ii) will have raised an additional $20,000,000
in net proceeds through the issuance of additional Subordinated Notes pursuant
to the Supplemental Subordinated Note Agreement
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which shall contain terms, including, without limitation, terms with respect to
amount, maturity, amortization, interest rate, premiums, fees, redemption,
covenants, subordination terms, events of default and remedies substantially
identical to those in the Subordinated Note Agreement or otherwise satisfactory
to the Required Lenders.
(N) Foreign Employee Benefit Compliance. Holdings shall, and shall
cause each of its Subsidiaries and ERISA Affiliates to, establish, maintain and
operate all Foreign Employee Benefit Plans to comply in all material respects
with all laws, regulations and rules applicable thereto and the respective
requirements of the governing documents for such Plans, except for failures to
comply which, in the aggregate, would not result in a material obligation to pay
money.
6.3 Negative Covenants.
(A) Indebtedness. Neither Holdings nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) the Transaction Costs;
(c) Permitted Existing Indebtedness, and any extension,
renewal, refunding or refinancing thereof, provided that any such
extension, renewal, refunding or refinancing is in an aggregate
principal amount not greater than the principal amount of and interest,
fees and expenses accrued on, such Permitted Existing Indebtedness
outstanding at the time thereof and is on terms (including, without
limitation, maturity, amortization, interest rate, premiums, fees,
covenants, events of default, and remedies) not materially less
favorable to the obligor or materially adverse to the Lenders than the
terms of such Permitted Existing Indebtedness;
(d) Indebtedness evidenced by the Subordinated Notes, but not
any increase in the principal amount thereof or interest rate or fees
applicable thereto and not any refinancing or refunding thereof, in
whole or in part, unless (i) any such refinancing is in an aggregate
principal amount not greater than the principal amount of and interest,
fees and expenses accrued on, such Subordinated Notes outstanding at
the time thereof; (ii) the terms of such refinancing or refunding,
including, without limitation, with respect to amount, maturity,
amortization, interest rate, premiums, fees, covenants, subordination
terms, events of default and remedies have been disclosed in writing to
the Administrative Agent and the Lenders not later than fifteen (15)
Business Days prior to the date of the proposed refinancing and (iii)
neither the Administrative Agent nor the Required Lenders shall have
informed Holdings within ten (10) Business Days of the receipt of the
written terms of such proposed refinancing, that, in their reasonable
judgment, such refinancing or refunding is materially less favorable to
Holdings or adverse to the interests of the
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Lenders, including, without limitation, with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants,
subordination terms, events of default and remedies;
(e) Indebtedness evidenced by the Seller Note but not any
increase in the principal amount thereof or interest rate or fees
applicable thereto and not any refinancing or refunding thereof, in
whole or in part;
(f) Indebtedness arising from intercompany loans from (1)
Holdings or any Subsidiary of Holdings to any Borrower, or (2) any
Subsidiary that is not a Borrower to any other Subsidiary or (3) Brink
or Brink International to any Subsidiary of Brink or Brink
International provided the aggregate amount of all Indebtedness of such
Subsidiaries of Brink or Brink International to Brink or Brink
International does not exceed in the aggregate the sum of $12,000,000
or the Equivalent Amount thereof, and provided further that all such
Indebtedness is evidenced by notes (or other evidence of indebtedness
acceptable to the Documentation and Collateral Agent) which are pledged
to the Documentation and Collateral Agent, (it being understood that
notes and debt obligations pledged by non-U.S. Subsidiaries will secure
payment only of Advances made to non-U.S.
Subsidiaries);
(g) Indebtedness in respect of Interest Rate Agreements
permitted under Section 6.3(R);
(h) Indebtedness with respect to warranties and indemnities
made under any agreements for Asset Sales permitted under Section
6.3(B);
(i) secured or unsecured purchase money Indebtedness
(including Capitalized Leases) incurred by Holdings or any of its
Subsidiaries after the Closing Date to finance the acquisition of fixed
assets, if (1) at the time of such incurrence, no Default or Unmatured
Default has occurred and is continuing or would result from such
incurrence, (2) such Indebtedness has a scheduled maturity and is not
due on demand, (3) such Indebtedness does not exceed in the aggregate
outstanding at any time $4,000,000, and (4) any Lien securing such
Indebtedness is permitted under Section 6.3(C) (such Indebtedness being
referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(j) Indebtedness with respect to surety, appeal and
performance bonds obtained by Holdings or any of its Subsidiaries in
the ordinary course of business;
(k) Indebtedness constituting Contingent Obligations permitted
by Section 6.3(E);
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(l) unsecured Indebtedness and other liabilities incurred in
the ordinary course of business and consistent with past practice, but
not incurred through the borrowing of money or the obtaining of credit
(other than customary trade terms); and
(m) Indebtedness incurred by AAS Canada on or after July 2,
1997 in an amount not to exceed Twenty Four Million Canadian Dollars
(C$24,000,000.00) to purchase certain assets pursuant to the ▇▇▇▇
Purchase Agreement, to effect the Nomadic Sports Purchase and to
provide for the working capital needs of AAS Canada.
(B) Sales of Assets. Neither Holdings nor any of its Subsidiaries shall
sell, assign, transfer, lease, convey or otherwise dispose of any property,
whether now owned or hereafter acquired, or any income or profits therefrom, or
enter into any agreement to do so, except:
(i) sales of Inventory in the ordinary course of business;
(ii) the disposition of obsolete equipment in the ordinary
course of business;
(iii) subject to compliance in connection therewith with the
terms of Section 2.5(B), sales, assignments, transfers, leases,
conveyances or other dispositions of other assets if such transaction
(a) is for all cash consideration with respect to any Collateral which
is sold, (b) is for not less than fair market value, and (c) when
combined with all such other sales, assignments, transfers, conveyances
or other dispositions in the immediately preceding twelve-month period
represents the disposition of not greater than ten percent (10.0%) of
Holdings' consolidated (y) tangible assets or (z) revenues;
(iv) subject to compliance in connection therewith with the
terms of Section 2.5(B) and Section 6.2(G), non-consensual dispositions
of property resulting from casualty damage (provided the loss is
covered by insurance in accordance with the provisions of Section
6.2(E)) or condemnation; and
(v) Excluded Transfers.
(C) Liens. Neither Holdings nor any of its Subsidiaries shall directly
or indirectly create, incur, assume or permit to exist any Lien on or with
respect to any of their respective property or assets except:
(i) Liens created by the Loan Documents;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens;
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(iv) Liens to secure Indebtedness permitted pursuant to
Section 6.3(A)(f);
(v) purchase money Liens (including the interest of a lessor
under a Capitalized Lease and Liens to which any property is subject at
the time of the acquisition thereof by Holdings or one of its
Subsidiaries) securing Permitted Purchase Money Indebtedness; provided
that such Liens shall not apply to any property of Holdings or its
Subsidiaries other than that purchased or subject to such Capitalized
Lease; and
(vi) Liens to secure Indebtedness permitted pursuant to
Section 6.3(A)(m).
In addition, neither Holdings nor any or its Subsidiaries (other than AAS
Canada) shall become a party to any agreement, note, indenture or other
instrument, or take any other action, which would prohibit the creation of a
Lien on any of its properties or other assets in favor of the Administrative
Agent for the benefit of itself and the Holders of Secured Obligations, as
additional collateral for the Obligations; provided that any agreement, note,
indenture or other instrument in connection with Permitted Purchase Money
Indebtedness (including Leases) may prohibit the creation of a Lien in favor of
the Administrative Agent for the benefit of itself and the Holders of the
Secured Obligations on the items of property obtained with the proceeds of such
Permitted Purchase Money Indebtedness.
(D) Investments. Except to the extent permitted pursuant to paragraph
(G) below, neither Holdings nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
(i) Investments in Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater
than the amount thereof on the Effective Date;
(iii) Investments received in connection with the bankruptcy
or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(iv) Investments consisting of deposit accounts maintained by
AAS or Valley in connection with their cash management systems provided
funds deposited in such deposit accounts are regularly transferred to
concentration accounts maintained, as of the date of this Agreement
with the Documentation and Collateral Agent, or such other
concentration account as is established with the consent of the
Administrative Agent;
(v) Investments consisting of deposit accounts maintained by
AAS Canada, or Brink International or Brink or any other Subsidiaries
of Brink International;
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(vi) Investments made prior to the occurrence of a Default or
Unmatured Default in third parties or joint ventures consisting of
manufacturing operations in a related line of business to that of AAS
and which can provide manufacturing support to AAS ("DESIGNATED
INVESTMENTS"), provided the aggregate amount of Designated Investments
after the date hereof do not exceed $5,000,000 and treating such
Designated Investment as capital expenditures, after making such
Investments, AAS is in full compliance with the Terms of Section 6.4;
(vii) Investments made by Holdings in Brink Acquisition prior
to January 31, 1997 and in Brink International, by Brink Acquisition in
Brink and its Subsidiaries and in Brink International and Investments
made prior to January 31, 1997 by Brink International in Brink and its
Subsidiaries;
(viii) Investments with respect to Indebtedness permitted
pursuant to Section 6.3(A)(f);
(ix) Investments with any other Persons which do not exceed
$50,000 in the aggregate at any time;
(x) Investments by AAS Canada effected pursuant to the ▇▇▇▇
Purchase Agreement; and
(xi) Investments in AAS Canada in an aggregate amount not to
exceed C$2,500,000.
(E) Contingent Obligations. Neither Holdings nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the ordinary course
of business; (ii) Permitted Existing Contingent Obligations and any extensions,
renewals or replacements thereof, provided that any such extension, renewal or
replacement is not greater than the Indebtedness under, and shall be on terms no
less favorable to Holdings or such Subsidiary than the terms of, the Permitted
Existing Contingent Obligation being extended, renewed or replaced; (iii)
obligations, warranties, and indemnities, not relating to Indebtedness of any
Person, which have been or are undertaken or made in the ordinary course of
business and not for the benefit of or in favor of an Affiliate of Holdings or
such Subsidiary; (iv) Contingent Obligations arising under the Transaction
Documents; (v) Contingent Obligations of Holdings or any of its Subsidiaries
with respect to any Indebtedness permitted by this Agreement, (vi) additional
Contingent Obligations which do not exceed $500,000 in the aggregate at any
time; (vii) Contingent Obligations with respect to surety, appeal and
performance bonds obtained by borrower or any subsidiary in the ordinary course
of business; (viii) guaranties by Holdings and AAS of Indebtedness incurred by
AAS Canada to the Canadian Lenders to finance the purchase pursuant to the ▇▇▇▇
Purchase Agreement and any earnout or contingent purchase price payments
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assumed pursuant to the ▇▇▇▇ Purchase Agreement, to finance the Nomadic Sports
Purchase and to provide for the working capital needs of AAS Canada; and (ix)
earnout or contingent purchase price obligations assumed by AAS Canada pursuant
to the ▇▇▇▇ Purchase Agreement in an aggregate amount not to exceed C$2,500,000.
(F) Restricted Junior Payments. Neither Holdings nor any of its
Subsidiaries shall declare or make any Restricted Junior Payment, except:
(i) Tax Distributions made sufficiently in advance to permit
the members of AAS, Valley or Holdings to pay (or if a flow-through
entity, to permit the party liable with respect thereto to pay) their
respective Income Tax Liabilities at the time they are obligated to
make such payments in respect thereof to the relevant Governmental
Authorities;
(ii) scheduled payments of interest, fees or expenses, if any,
due on the Subordinated Indebtedness permitted under Section 6.3(A)(d)
and Section 6.3(A)(e) unless such payments are prohibited by the terms
of such Indebtedness;
(iii) payments of Permitted Subordinated Indebtedness from the
proceeds of Indebtedness incurred pursuant to Section 6.3(A)(d) to
refinance such Permitted Subordinated Indebtedness;
(iv) payments made in connection with the repurchase of
membership, ownership or other equity interests in Holdings or any of
its Subsidiaries from any Person in connection with the termination
(voluntarily or involuntarily) of such Person's employment with
Holdings or any of its Subsidiaries which, in the aggregate, exceed the
aggregate amount received by Holdings or any of its Subsidiaries from
the resale or reissuance of such interests by not more than $300,000;
(v) payments of customary and reasonable fees and expense
reimbursements to members of the board of managers or directors of
Holdings and any Borrower in an aggregate amount not to exceed $100,000
in any 12-month period;
(vi) management, consulting, advisory or other similar fees to
F. ▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in the amounts required to be paid
pursuant to the Consulting Agreements dated as of the Closing Date
between AAS and F. ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, respectively, in
an aggregate amount not to exceed $290,000 in any 12-month period; and
(vii) Restricted Junior Payments made by any Subsidiary of
Holdings to Holdings or any other Subsidiary of Holdings except that no
Subsidiary that is a Borrower or an
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obligor on a Guaranty shall make any Restricted Junior Payment to a
Subsidiary of Holdings that is not a Borrower or an obligor on a
Guaranty.
provided, however, that the Restricted Junior Payments described in clause (iv)
above shall not be permitted if either a Default or an Unmatured Default shall
have occurred and be continuing at the date of declaration or payment thereof or
would result therefrom and further provided that the Restricted Junior Payments
described in clause (vi) above shall not be permitted if either a Default or an
Unmatured Default under Section 7.1(a) or an "Event of Default" (as defined in
the Subordinated Note Agreement) under Section 9.01(a) of the Subordinated Note
Agreement shall have occurred and be continuing at the date of declaration or
payment thereof, provided that after any such default is cured or waived in
writing and all amounts then due or owing to the Lenders and/or the holder of
the Subordinated Indebtedness have been paid in full, AAS, Valley or Holdings
may make the payments which, but for such default, AAS, Valley or Holdings would
have been permitted to make.
(G) Conduct of Business; Subsidiaries; Acquisitions. Neither Holdings
nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by them on the date hereof and any business or activities
which are substantially similar, related or incidental thereto. Holdings shall
not engage, either directly or indirectly (except through its Subsidiaries) in
any operating business enterprise but shall solely own ownership, membership or
other equity interests in its Subsidiaries. Holdings shall not and shall not
permit any of its Subsidiaries to create, capitalize or acquire any Subsidiary
after the date hereof except (i) Excluded Transfers, (ii) the reorganization of
certain French Subsidiaries and (iii) AAS Canada. Neither Holdings nor any of
its Subsidiaries shall enter into any transaction or series of transactions
(other than Excluded Transfers) in which it acquires all or any significant
portion of the assets of another Person unless such purchase meets the following
requirements (each such purchase constituting a "PERMITTED ACQUISITION") except
for AAS Canada:
(1) no Default or Unmatured Default shall have occurred and be
continuing or would result from such transaction or transactions or the
incurrence of any Indebtedness in connection therewith;
(2) prior to each such purchase, Holdings shall deliver to the
Administrative Agent and the Lenders a certificate from one of
Holdings' Authorized Officers demonstrating to the satisfaction of the
Administrative Agent and the Required Lenders that after giving effect
to such transaction or transactions and the incurrence of any
Indebtedness permitted by Section 6.3(A) in connection therewith on a
pro forma basis as if such acquisition and such incurrence of
Indebtedness had occurred on the first day of the twelve-month period
ending on the last day of Holdings' most recently completed fiscal
quarter, Holdings would have been in compliance with all provisions of
Section 6.4 at all times during such twelve-month period; and
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(3) effective as of the date of each such purchase (taking
into account the effect of such purchase and any indebtedness incurred
in connection therewith), Holdings shall deliver to the Administrative
Agent a Borrowing Base Certificate, which Borrowing Base Certificate
shall demonstrate that Revolving Credit Availability shall not be less
than $5,000,000; and
(4) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and involves the purchase
of a business line similar, related or incidental to that of the
Borrowers' as of the Effective Date; and
(5) the aggregate purchase price (including assumed
liabilities) in connection with all such transactions from and after
the Effective Date shall not exceed:
(A) $10,000,000 provided the sources for such
purchases are from Net Cash Proceeds resulting from the
issuance, sale, conveyance, disposition or other transfer by
Holdings or one of the other Borrowers of any Capital Stock of
or ownership, membership or other equity interests in such
Person; and
(B) $2,000,000 if the sources for such purchases are
other than as set forth in clause (A) above.
The acquisitions pursuant to the ▇▇▇▇ Purchase Agreement and the Nomadic Sports
Purchase shall each be deemed to be Permitted Acquisitions.
(H) Transactions with Shareholders and Affiliates. Neither Holdings nor
any of its Subsidiaries shall directly or indirectly (i) except as permitted in
Section 6.3(F), pay any management fees or other similar fees or compensation to
Chase Capital Partners, Management or any other holder or holders of ownership,
membership or other equity interests in any of the Borrowers, other than wages,
salaries and bonuses of employees who are also holders of ownership, membership
or other equity interests in any of the Borrowers or Holdings in the ordinary
course and consistent with past practices or (ii) enter into or permit to exist
any transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder or
holders of any ownership, membership or other equity interests in Holdings, or
with any Affiliate of Holdings which is not its Subsidiary, on terms that are
less favorable to Holdings or its Subsidiaries, as applicable, than those that
might be obtained in an arm's length transaction at the time from Persons who
are not such a holder or Affiliate.
(I) Restriction on Fundamental Changes. Neither Holdings nor any of its
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of Holdings' or any such Subsidiary's
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business or property, whether now or hereafter acquired, except transactions
permitted under Sections 6.3(B) or 6.3(G) and except that any Subsidiary of
Holdings may merge with or liquidate into Holdings or any other Subsidiary of
Holdings, provided that the surviving entity expressly assumes any liabilities,
if any, of either of such Subsidiaries with respect to the Obligations pursuant
to an assumption agreement reasonably satisfactory to the Administrative Agent
and provided further that the consolidated net worth of the surviving
corporation is not less than the consolidated net worth of the Subsidiary with
any liability with respect to the Obligations immediately prior to such merger
and any limited liability company other than Holdings may terminate its
existence and Holdings may merge or liquidate into a corporation provided such
corporation expressly assumes the liabilities of Holdings with respect to the
Obligations pursuant to an assumption agreement reasonably satisfactory to the
Administrative Agent and the consolidated net worth of such corporation
following such merger is not less than the consolidated net worth of Holdings
immediately prior thereto.
(J) Sales and Leasebacks. Neither Holdings nor any of its Subsidiaries
shall become liable, directly, by assumption or by Contingent Obligation, with
respect to any lease, whether an Operating Lease or a Capitalized Lease, of any
property (whether real or personal or mixed) (i) which it or one of its
Subsidiaries sold or transferred or is to sell or transfer to any other Person,
or (ii) which it or one of its Subsidiaries intends to use for substantially the
same purposes as any other property which has been or is to be sold or
transferred by it or one of its Subsidiaries to any other Person in connection
with such lease, unless in either case the sale involved is not prohibited under
Section 6.3(B) and the lease involved is not prohibited under Section 6.3(A).
(K) Margin Regulations. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
(L) ERISA. Holdings shall not (i) engage, or permit any of its
Subsidiaries to engage, in any prohibited transaction described in Sections 406
of ERISA or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from the DOL;
(ii) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue Code),
with respect to any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to
pay timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any liability of
Holdings or any Controlled Group member under Title IV of ERISA;
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(v) fail to make any contribution or payment to any
Multiemployer Plan which Holdings or any Controlled Group member may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto;
(vi) fail, or permit any Controlled Group member to fail, to
pay any required installment or any other payment required under
Section 412 of the Internal Revenue Code on or before the due date for
such installment or other payment; or
(vii) amend, or permit any Controlled Group member to amend, a
Plan resulting in an increase in current liability for the plan year
such that Holdings or any Controlled group member is required to
provide security to such Plan under Section 401(a)(29) of the Code.
(M) Issuance of Equity Interests. Neither Holdings nor any of its
Subsidiaries shall issue any ownership, membership or other equity interests
after the date of this Agreement other than issuance of equity interests by
Subsidiaries of Holdings to Holdings or to a wholly-owned Subsidiary of
Holdings; provided in each such case all mandatory prepayments required under
Section 2.5(B) are made and provided further that all such equity interests
shall have been pledged to the Documentation and Collateral Agent for the
benefit of itself and the Holders of Secured Obligations pursuant to pledge
documentation in form and substance acceptable to the Documentation and
Collateral Agent (unless such a pledge would have adverse tax consequences for
Holdings).
(N) Organizational Documents. Neither Holdings nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective organizational documents as in effect on
the date hereof in any manner adverse to the interests of the Lenders without
the prior written consent of the Required Lenders.
(O) Other Indebtedness. Neither Holdings nor any of its Subsidiaries
shall amend, supplement or otherwise modify the terms of any Indebtedness (other
than the Obligations) permitted under Section 6.3(A) except Indebtedness owed by
a Borrower or Guarantor to a Borrower or Guarantor in any way that would be
materially less advantageous to Holdings or such Subsidiary or materially
adverse to the Lenders, including, without limitation, with respect to amount,
maturity, amortization, interest rate, premiums, fees, covenants, events of
default and remedies.
(P) Fiscal Year. Neither Holdings nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
(Q) Change of Deposit Accounts. Holdings shall not, and shall not
permit any Subsidiary to, establish or maintain any deposit account with any
bank or other financial institution other than
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(i) those which have entered into a Collection Account Agreement in form and
substance acceptable to the Documentation and Collateral Agent, (ii) in the case
of AAS Canada, Brink International or Brink or other Subsidiaries of Brink
International, those which have entered into arrangements acceptable to the
Documentation and Collateral Agent and (iii) others where the aggregate balance
does not exceed $500,000 in the aggregate.
(R) Rate Hedging Obligations. Holdings shall not and shall not permit
any of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements other than interest
rate, foreign currency or commodity exchange, swap, collar, cap, leveraged
derivative or similar agreements entered into pursuant to Section 6.2(L) hereof
or pursuant to which Holdings or any of its Subsidiaries have hedged its or
their actual interest rate, foreign currency or commodity exposure (such hedging
agreements are sometimes referred to herein as "INTEREST RATE AGREEMENTS").
(S) Subordinated Indebtedness. Holdings shall not amend, supplement or
modify the terms of any Permitted Subordinated Indebtedness, or make any payment
required as a result of an amendment or change thereto. Except as permitted in
Section 6.3(F)(ii) or as required by Section 2.5(B)(ii)(d)(II), neither Holdings
nor any of its Subsidiaries shall purchase, redeem, prepay (by set-off or
otherwise), defease or repay any principal of, premium, if any, or other amount
(other than interest) payable in respect of any Permitted Subordinated
Indebtedness nor shall any of them prepay (by set-off or otherwise) any interest
payable in respect of any Permitted Subordinated Indebtedness.
6.4 Financial Covenants. Holdings shall comply with the following:
(A) Defined Terms for Financial Covenants. The following terms used in
this Agreement shall have the following meanings (such meanings to be
applicable, except to the extent otherwise indicated in a definition of a
particular term, both to the singular and the plural forms of the terms
defined):
"CAPITAL EXPENDITURES" means, for any period, the aggregate of (i) all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by Holdings and
its Subsidiaries during that period that, in conformity with Agreement
Accounting Principles, are required to be included in or reflected by the
property, plant, equipment or similar fixed asset accounts reflected in the
consolidated balance sheet of Holdings and its Subsidiaries other than with
respect to the acquisition of inventory in the ordinary course of business and
(ii) all Designated Investments during that period under Section 6.3(D)(v). No
portion of the purchase of assets by AAS Canada pursuant to the ▇▇▇▇ Purchase
Agreement or the Nomadic Sports Purchase shall be deemed to be a Capital
Expenditure.
"CONSOLIDATED NET WORTH" shall mean, at a particular date, all amounts
which would be included under owners' or members' equity for Holdings and its
consolidated Subsidiaries
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determined in accordance with Agreement Accounting Principles, provided,
however, (i) if Holdings issues Subordinated Notes pursuant to the High Yield
Note Agreement, the effect of payments made to repurchase, redeem or cancel the
warrants issued to the Holders of the Subordinated Notes issued pursuant to the
Subordinated Note Agreement shall be excluded in calculating Holdings'
Consolidated Net Worth and (ii) the effect of any adjustments in the cumulative
foreign currency translation account of Holdings and its consolidated
Subsidiaries shall be excluded in calculating Holdings' Consolidated Net Worth.
"EBITDA" means, for any period, on a consolidated basis for Holdings
and its consolidated Subsidiaries, the sum of the amounts for such period,
without duplication, of (i) Net Income, plus (ii) Tax Distributions, plus (iii)
charges against income for foreign income taxes or U.S. income taxes, plus (iv)
Interest Expense, plus (v) depreciation expense, plus (vi) amortization expense,
including, without limitation, amortization of goodwill and other intangible
assets, plus (vii) other non-cash charges (including, without duplication, any
effect of any write-up in the value of Inventory attributable to purchase
accounting) in accordance with Agreement Accounting Principles, minus (viii)
interest income, minus (ix) extraordinary gains (and any nonrecurring unusual
gains arising in or outside of the ordinary course of business not included in
extraordinary gains determined in accordance with Agreement Accounting
Principles which have been included in the determination of Net Income).
"INTEREST EXPENSE" means, for any period, the total interest expense of
Holdings and its consolidated Subsidiaries, whether paid or accrued, but without
duplication (including the interest component of Capitalized Leases), but
excluding interest expense not payable in cash (including amortization of
discount), all as determined in conformity with Agreement Accounting Principles.
"NET INCOME" means, for any period, the net earnings (or loss) after
taxes of Holdings and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with Agreement
Accounting Principles minus an amount equal to Tax Distributions made for such
period.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property but does not include any
amounts payable under Capitalized Leases of such Person.
"SENIOR DEBT RATIO" shall mean the ratio of (i) the Indebtedness of
Holdings and its consolidated Subsidiaries with respect to the Secured
Obligations (other than Rate Hedging Obligations) to (ii) EBITDA. In each case,
the Senior Debt Ratio shall be determined as of the last day of each fiscal
quarter based upon, for Indebtedness, the outstanding principal balance of the
Obligations of the Borrowers as of the last day of each such fiscal quarter and,
for EBITDA, the actual amount of EBITDA of Holdings and its consolidated
Subsidiaries for the four (4) fiscal quarter period ending on such day
(provided, however, that (a) for the fiscal quarter ending September 30, 1997,
the Senior Debt Ratio shall be calculated using EBITDA for Holdings and
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its consolidated Subsidiaries for such fiscal quarter multiplied by four (4),
(b) for the fiscal quarter period ending December 31, 1997, the Senior Debt
Ratio shall be calculated using EBITDA for Holdings and its consolidated
Subsidiaries for the two (2) fiscal quarters ending December 31, 1997 multiplied
by two (2), and (c) for the fiscal quarter ending March 31, 1998, the Senior
Debt Ratio shall be calculated using EBITDA for Holdings and its consolidated
Subsidiaries for the three (3) fiscal quarters ending March 31, 1998 multiplied
by four-thirds (4/3)).
(B) Rentals. Holdings will not, nor will it permit any Subsidiary to,
create, incur or suffer to exist obligations for Rentals in excess of $4,000,000
in any fiscal year of Holdings on a non-cumulative basis in the aggregate for
Holdings and its Subsidiaries.
(C) Fixed Charge Coverage Ratio. Holdings shall maintain a ratio
("FIXED CHARGE COVERAGE RATIO") of: (i) the sum of the amounts of (a) EBITDA,
minus (b) Capital Expenditures (excluding Capital Expenditures to the extent (x)
they are financed by third parties, (y) they are paid for with proceeds from
Asset Sales or (z) they are paid for with insurance or condemnation proceeds) to
(ii) the sum of the amounts of (a) Interest Expense, plus (b) scheduled
amortization of the principal portion of the Term Loans and scheduled
amortization of the principal portion of all other Indebtedness of Holdings and
its Subsidiaries during such period of at least:
(1) 1.25 to 1.00 for the fiscal quarter ending December 31,
1997;
(2) 1.30 to 1.00 for the fiscal quarter ending March 31, 1998;
(3) 1.35 to 1.00 for the fiscal quarter ending June 30, 1998;
(4) 1.40 to 1.00 for the fiscal quarter ending September 30,
1998; and
(5) 1.50 to 1.00 for each fiscal quarter thereafter until the
Tranche B Term Loan Termination Date.
In each case the Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter for the four-quarter period ending on such day
(provided, however, that (a) for the fiscal quarter ending December 31, 1997,
the Fixed Charge Coverage Ratio shall be calculated using (i) EBITDA, Capital
Expenditures, Interest Expense and the scheduled principal amortization of
Indebtedness of Holdings and its consolidated Subsidiaries for the fiscal
quarter ended December 31, 1997, (b) for the fiscal quarter ending March 31,
1998, the Fixed Charge Coverage Ratio shall be calculated using (i) EBITDA,
Capital Expenditures, Interest Expense and the scheduled principal amortization
of Indebtedness of Holdings and its consolidated Subsidiaries for the two fiscal
quarters ending March 31, 1998 and (c) for the fiscal quarter ending June 30,
1998, the Fixed Charge Coverage Ratio shall be calculated using (i) EBITDA,
Capital Expenditures, Interest Expense and the scheduled principal amortization
of Indebtedness of Holdings and its consolidated Subsidiaries for the three
fiscal quarters ending June 30, 1998).
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(D) Minimum Consolidated Net Worth. Holdings shall not permit its
Consolidated Net Worth at any time to be less than $14,000,000 plus seventy-five
percent (75%) of Net Income from October 1, 1997 to the date of such
calculation.
At the time the purchase accounting adjustments for the Valley Acquisition are
finalized, the financial covenants in Section 6.4(D) will be amended in a credit
neutral manner to reflect any difference between the actual purchase accounting
adjustments and the purchase accounting adjustments projected as of the
Effective Date.
(E) Maximum Leverage Ratio. Holdings shall not permit the ratio
("LEVERAGE RATIO") of (i) the sum of (a) Indebtedness of Holdings and its
consolidated Subsidiaries for borrowed money, including, without limitation,
Indebtedness evidenced by the Subordinated Notes and Indebtedness evidenced by
the Seller Note and (b) Capitalized Lease Obligations to (ii) EBITDA to be
greater than the ratio set forth below at the end of the fiscal quarter ending
on the corresponding date set forth below:
PERIOD ENDING MAXIMUM LEVERAGE RATIO
------------- ----------------------
December 31, 1997 5.50 to 1.00
March 31, 1998 5.25 to 1.00
June 30, 1998 5.00 to 1.00
September 30, 1998 4.75 to 1.00
December 31, 1998 4.50 to 1.00
March 31, 1999 4.50 to 1.00
June 30, 1999 4.25 to 1.00
September 30, 1999 4.25 to 1.00
December 31, 1999 4.00 to 1.00
March 31, 2000 4.00 to 1.00
June 30, 2000 3.75 to 1.00
September 30, 2000 3.75 to 1.00
December 31, 2000 3.50 to 1.00
and each quarter
thereafter
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter based upon (A) for Indebtedness, Indebtedness as of
the last day of each such fiscal quarter; and (B) for EBITDA, the actual amount
for the four-quarter period ending on such day (provided, however, that (a) for
the fiscal quarter ending December 31, 1997, the Leverage Ratio
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shall be calculated using EBITDA for Holdings and its consolidated Subsidiaries
for the fiscal quarter ending on such date multiplied by four (4), (b) for the
fiscal quarter ending March 31, 1998, the Leverage Ratio shall be calculated
using EBITDA for Holdings and its consolidated Subsidiaries for the two fiscal
quarter period ending March 31, 1998 multiplied by two (2), and (c) for the
fiscal quarter ending June 30, 1998, the Leverage Ratio shall be calculated
using EBITDA for Holdings and its consolidated Subsidiaries for the three fiscal
quarter period ending June 30, 1998 multiplied by four-thirds (4/3).
(F) Capital Expenditures. Holdings will not, nor will it permit any
Subsidiary to, expend, or be committed to expend, for Capital Expenditures
(excluding Capital Expenditures to the extent (x) they are financed by third
parties, (y) they are paid for with proceeds from Asset Sales or (z) they are
paid for with insurance or condemnation proceeds) during any one fiscal year in
the aggregate for Holdings and its Subsidiaries in excess of $10,000,000 plus
the difference, if positive, between the maximum aggregate amount of Capital
Expenditures permitted to be expended in the immediately preceding fiscal year
and the amount of Capital Expenditures actually expended in the immediately
preceding fiscal year but only to the extent that such difference does not
exceed $5,000,000.
ARTICLE VII: DEFAULTS
7.1 Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
(a) Failure to Make Payments When Due. Any Borrower shall (i) fail to
pay when due any of the Obligations consisting of principal with respect to the
Loans or (ii) shall fail to pay within three (3) Business Days of the date when
due any of the other Obligations under this Agreement or the other Loan
Documents.
(b) Breach of Certain Covenants. Any Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on such Borrower under:
(i) Sections 6.1(C), 6.1(D), 6.1(E), 6.1(F), 6.1(G), 6.1(H),
6.1(I), 6.1(K), 6.2(B), 6.2(C) or 6.2(F) and such failure shall
continue unremedied for fifteen (15) days;
(ii) Section 6.1(A), 6.1(B) or 6.1(J) and such failure shall
continue unremedied for five (5) Business Days; or
(iii) Section 6.3 or 6.4(B), 6.4(C), 6.4(D), 6.4(E) or 6.4(F).
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by any Borrower to the Administrative Agent or any
Lender herein or by Holdings or any of its Subsidiaries in any of the other Loan
Documents or in any statement or certificate at
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any time given by any such Person pursuant to any of the Loan Documents shall be
false or misleading in any material respect on the date as of which made (or
deemed made).
(d) Other Defaults. Any Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered by
paragraphs (a), (b) or (c) of this Section 7.1), or Holdings or any of its
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for thirty (30) days after Holdings or any of its Subsidiaries knew of such
default or should have known of such default exercising reasonable diligence, or
Holdings or any of its Subsidiaries shall default on the performance of or
compliance with any term contained in the Subordinated Note Agreement, the High
Yield Note Agreement or the Supplemental Subordinated Note Agreement and such
default shall continue for the applicable period of grace set forth therein.
(e) Default as to Other Indebtedness. Any of Holdings or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) with respect
to any Indebtedness (other than the Obligations) the outstanding principal
amount of which Indebtedness is in excess of $500,000; or any breach, default or
event of default shall occur, or any other condition shall exist under any
instrument, agreement or indenture pertaining to any such Indebtedness, if the
effect thereof is to cause an acceleration, mandatory redemption, a requirement
that Holdings or any such Subsidiary offer to purchase such Indebtedness or
other required repurchase of such Indebtedness, or permit the holder(s) of such
Indebtedness to accelerate the maturity of any such Indebtedness or require a
redemption or other repurchase of such Indebtedness; or any such Indebtedness
shall be otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed or otherwise repurchased by Holdings or any
of its Subsidiaries (other than by a regularly scheduled required prepayment)
prior to the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against Holdings or
any of its Subsidiaries and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement
of the case; or a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of Holdings or any of its
Subsidiaries in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal,
state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over Holdings
or any of its Subsidiaries or over all or a substantial part of the
property of Holdings or any of its Subsidiaries shall be entered; or an
interim receiver, trustee or other custodian of Holdings or any of its
Subsidiaries or of all or a
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substantial part of the property of Holdings or any of its Subsidiaries
shall be appointed or a warrant of attachment, execution or similar
process against any substantial part of the property of Holdings or any
of its Subsidiaries shall be issued and any such event shall not be
stayed, dismissed, bonded or discharged within sixty (60) days after
entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. Holdings or any
of its Subsidiaries shall (i) commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (ii)
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, (iii)
consent to the appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property, (iv) make any
assignment for the benefit of creditors or (v) take any corporate, partnership
or comparable action to authorize any of the foregoing.
(h) Judgments and Attachments. Any money judgment(s) (other than a
money judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against any of Holdings or any of its
Subsidiaries or any of their respective assets involving in any single case or
in the aggregate an amount in excess of $500,000 is (are) entered and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days or in any event later than fifteen (15) days prior to the date of any
proposed sale thereunder.
(i) Dissolution. Any order, judgment or decree shall be entered against
Holdings or any of its Subsidiaries decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of sixty (60) days; or Holdings or any of its Subsidiaries shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement unless the dissolving entity is a limited liability company which
elects to continue its existence.
(j) Loan Documents; Failure of Security. At any time, for any reason,
(i) any Loan Document as a whole that materially affects the ability of the
Administrative Agent, Documentation and Collateral Agent, or any of the Lenders
to enforce the Obligations or enforce their rights against the Collateral ceases
to be in full force and effect or any of Holdings or any of its Subsidiaries
party thereto seeks to repudiate its obligations thereunder and the Liens
intended to be created thereby are, or any of Holdings or any such Subsidiary
seeks to render such Liens, invalid and unperfected, or (ii) Liens on Collateral
with a fair market value in excess of $500,000 in favor of the Administrative
Agent contemplated by the Loan Documents shall, at any time, for any reason, be
invalidated or otherwise cease to be in full force and effect, or such Liens
shall not have the priority contemplated by this Agreement or the Loan
Documents.
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(k) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject Holdings, Valley or AAS to
liability in excess of $250,000.
(l) Waiver of Minimum Funding Standard. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either Holdings or any Controlled Group
member to liability in excess of $250,000.
(m) Change of Control. A Change of Control shall occur.
(n) Interest Rate Agreements. Nonpayment by Holdings or any of its
Subsidiaries of any obligation under the any Interest Rate Agreements entered
into with any Lender on the date such payment is due or the breach by Holdings
or any of its Subsidiaries of any other term, provision or condition contained
in any such Interest Rate Agreements which breach remains unremedied for thirty
(30) days.
(o) Environmental Matters. Holdings or any of its Subsidiaries shall be
the subject of any proceeding or investigation pertaining to (i) the Release by
Holdings or any of its Subsidiaries of any Contaminant into the environment,
(ii) the liability of any of Holdings or any of its Subsidiaries arising from
the Release by any other Person of any Contaminant into the environment, or
(iii) any violation of any Environmental, Health or Safety Requirements of Law
by Holdings or any of its Subsidiaries, which, in any case, has or is reasonably
likely to subject Holdings or any of its Subsidiaries to liability individually
or in the aggregate in excess of $500,000.
(p) Guarantor Revocation. Any guarantor of the Obligations shall
terminate or revoke or refuse to perform any of its payment obligations under
the applicable guarantee agreement or breach any of the other terms of such
guarantee agreement which breach remains unremedied for thirty (30) days.
(q) Failure of Subordination. The subordination provisions of the
documents and instruments evidencing any Permitted Subordinated Indebtedness, at
any time, be invalidated or otherwise cease to be in full force and effect.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 8.3.
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES
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8.1 Remedies
(a) Termination of Commitments; Acceleration. If any Default described
in Section 7.1(f) or 7.1(g) occurs with respect to any of the Borrowers, the
obligations of the Lenders to make Loans hereunder and the obligation of the
Administrative Agent or any Issuing Lender to issue Letters of Credit hereunder
shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of the Administrative
Agent, any Lender or any Issuing Lender. If any other Default occurs, the
Required Lenders may (i) terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation of the Issuing Lenders to issue Letters
of Credit hereunder, or (ii) declare the Obligations to be due and payable, or
both, and upon any declaration under clause (ii), the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrowers expressly waive.
(b) Rescission. If at any time after termination of the Lenders'
obligations to make Revolving Loans or acceleration of the maturity of the
Loans, Borrowers shall pay all arrears of interest and all payments on account
of principal of the Loans and Reimbursement Obligations which shall have become
due otherwise than by acceleration (with interest on principal and, to the
extent permitted by law, on overdue interest, at the rates specified in this
Agreement) and all Defaults and Unmatured Defaults (other than nonpayment of
principal of and accrued interest on the Loans due and payable solely by virtue
of acceleration) shall be remedied or waived pursuant to Section 8.3, then upon
the written consent of the Required Lenders and written notice to Borrowers, the
termination of Lenders' respective obligations to make Revolving Loans and the
respective Lenders' and the Issuing Lenders' obligations to participate in or
issue Letters of Credit or the aforesaid acceleration and its consequences may
be rescinded and annulled; but such action shall not affect any subsequent
Default or Unmatured Default or impair any right or remedy consequent thereon.
The provisions of the preceding sentence are intended merely to bind the Lenders
and the Issuing Lenders to a decision which may be made at the election of the
Required Lenders; they are not intended to benefit Borrowers and do not give
Borrowers the right to require the Lenders to rescind or annul any termination
of the aforesaid obligations of the Lenders or Issuing Lenders or any
acceleration hereunder, even if the conditions set forth herein are met.
(c) Enforcement. The Borrowers acknowledge that in the event the
Borrowers fail to perform, observe or discharge any of their respective
obligations or liabilities under this Agreement or any other Loan Document, any
remedy of law may prove to be inadequate relief to the Administrative Agent, the
Issuing Lenders and the Lenders; therefore, Borrowers agree that the
Administrative Agent, the Issuing Lenders and the Lenders shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
8.2 Defaulting Lender. In the event that any Lender fails to fund its
Tranche A Pro Rata Share or Tranche B Pro Rata Share, as applicable, of any
Advance requested or deemed requested by any Borrower which such Lender is
obligated to fund under the terms of this
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Agreement (the funded portion of such Advance being hereinafter referred to as a
"NON PRO RATA LOAN"), until the earlier of such Lender's cure of such failure
and the termination of the Revolving Loan Commitments, the proceeds of all
amounts thereafter repaid to the Administrative Agent by the Borrowers and
otherwise required to be applied to such Lender's share of all other Obligations
pursuant to the terms of this Agreement shall be advanced to the Borrowers by
the Administrative Agent ("CURE LOANS") on behalf of such Lender to cure, in
full or in part, such failure by such Lender, but shall nevertheless be deemed
to have been paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 8.2 shall apply
only with respect to the proceeds of payments of Obligations and shall
not affect the conversion or continuation of Loans pursuant to Section
2.10;
(ii) any such Lender shall be deemed to have cured its failure
to fund its Tranche A Pro Rata Share or Tranche B Pro Rata Share, as
applicable of any Advance at such time as an amount equal to such
Lender's original Tranche A Pro Rata Share or Tranche B Pro Rata Share,
as applicable, of the requested principal portion of such Advance is
fully funded to the applicable Borrower, whether made by such Lender
itself or by operation of the terms of this Section 8.2, and whether or
not the Non Pro Rata Loan with respect thereto has been repaid,
converted or continued;
(iii) amounts advanced to any Borrower to cure, in full or in
part, any such Lender's failure to fund its Tranche A Pro Rata Share or
Tranche B Pro Rata Share, as applicable, of any Advance shall bear
interest at the rate applicable to Tranche A Term Loans or Tranche B
Term Loans, as applicable, which are Base Rate Loans, in effect from
time to time, and for all other purposes of this Agreement shall be
treated as if they were Base Rate Loans;
(iv) regardless of whether or not a Default has occurred or is
continuing, and notwithstanding the instructions of the applicable
Borrower as to its desired application, all repayments of principal
which, in accordance with the other terms of this Agreement, would be
applied to the outstanding Base Rate Loans shall be applied first,
ratably to all Base Rate Loans constituting Non Pro Rata Loans, second,
ratably to Base Rate Loans other than those constituting Non Pro Rata
Loans or Cure Loans and, third, ratably to Base Rate Loans constituting
Cure Loans;
(v) for so long as and until the earlier of any such Lender's
cure of the failure to fund its Tranche A Pro Rata Share or Tranche B
Pro Rata Share, as applicable, of any Advance and the termination of
the Revolving Loan Commitments, the term "Required Lenders" for
purposes of this Agreement shall
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mean Lenders (excluding all Lenders whose failure to fund their
respective Tranche A Pro Rata Share or Tranche B Pro Rata Share, as
applicable, of such Advance have not been so cured) whose Pro Rata
Shares represent greater than fifty percent (50%) of the aggregate Pro
Rata Shares of such Lenders; and
(vi) for so long as and until any such Lender's failure to
fund its Tranche A Pro Rata Share or Tranche B Pro Rata Share, as
applicable, of any Advance is cured in accordance with Section 8.2(ii),
(A) such Lender shall not be entitled to any commitment fees with
respect to its Revolving Loan Commitment and (B) such Lender shall not
be entitled to any letter of credit fees, which commitment fees and
letter of credit fees shall accrue in favor of the Lenders which have
funded their respective Tranche A Pro Rata Share or Tranche B Pro Rata
Share, as applicable, of such requested Advance, shall be allocated
among such performing Lenders ratably based upon their relative
Revolving Loan Commitments, and shall be calculated based upon the
average amount by which the aggregate Revolving Loan Commitments of
such performing Lenders exceeds the sum of (I) the outstanding
principal amount of the Loans owing to such performing Lenders, plus
(II) the outstanding Reimbursement Obligations owing to such performing
Lenders, plus (III) the aggregate participation interests of such
performing Lenders arising pursuant to Section 2.21 with respect to
undrawn and outstanding Letters of Credit.
8.3 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
(i) Postpone or extend the Termination Date, the Tranche A
Term Loan Termination Date, the Tranche B Term Loan Termination Date or
any other date fixed for any payment of principal of, or interest on,
the Loans, the Reimbursement Obligations or any fees or other amounts
payable to such Lender (except with respect to (a) any modifications of
the provisions relating to prepayments of Loans and other Obligations
(other than the provisions relating to prepayments of the Tranche B
Term Loans which can be modified only with the approval of Lenders with
Tranche B Pro Rata Shares greater than fifty percent (50%)) and (b) a
waiver of the application of the default rate of interest pursuant to
Section 2.11 hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon or other amounts payable hereunder.
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(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified matters or
amend the definitions of "Requisite Lenders", "Tranche A Pro Rata
Share", "Tranche B Pro Rata Share" or "Pro Rata Share".
(iv) Increase the amount of the Revolving Loan Commitment of
any Lender hereunder (except with respect to an increase in the amount,
or other modification to the terms or components, of the Borrowing
Base) or increase any Lender's Tranche A Pro Rata Share, Tranche B Pro
Rata Share or Pro Rata Share.
(v) Amend the provisions of Section 2.5 to the extent they
prescribe pro rata application between Tranche A Term Loans and Tranche
B Term Loans of all prepayments governed by Section 2.5.
(vi) Permit any Borrower to assign its rights under this
Agreement.
(vii) Amend this Section 8.3.
(viii) Release any guarantor of the Obligations or all or
substantially all of the Collateral.
(ix) Amend, modify or waive the provisions of Section 6.2(M).
(x) Amend, modify or waive the provisions of Section 11.3.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent. No amendment of any provision of this Agreement relating to any Issuing
Lender shall be effective without the written consent of the Administrative
Agent and each of the Issuing Lenders. No amendment of any provision of this
Agreement relative to any Swing Line Lender shall be effective without the
written consent of each of the Swing Line Lenders. The Administrative Agent may
waive payment of the fee required under Section 12.3(B) without obtaining the
consent of any of the Lenders.
8.4 Preservation of Rights. No delay or omission of the Lenders, the
Issuing Lenders, the Documentation and Collateral Agent or the Administrative
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan or the issuance of a Letter of Credit notwithstanding the
existence of a Default or the inability of the Borrowers to satisfy the
conditions precedent to such Loan or issuance of such Letter of Credit shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other
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or further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the Loan
Documents whatsoever shall be valid unless in writing signed by the Lenders
required pursuant to Section 8.3, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent, the Issuing Lenders, the Documentation and Collateral Agent and the
Lenders until the Obligations have been paid in full.
ARTICLE IX: GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of
the Borrowers contained in this Agreement shall survive delivery of the Notes
and the making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrowers and neither the Administrative Agent nor any Issuing Lender shall
be obligated to issue any Letter of Credit for the account of any Borrower in
violation of any limitation or prohibition provided by any applicable statute or
regulation.
9.3 Performance of Obligations. Each of the Borrowers agrees that the
Administrative Agent may, but shall have no obligation to (i) at any time, pay
or discharge taxes, liens, security interests or other encumbrances levied or
placed on or threatened against any Collateral and (ii) after the occurrence and
during the continuance of a Default make any other payment or perform any act
required of any Borrower under any Loan Document or take any other action which
the Administrative Agent in its discretion deems necessary or desirable to
protect or preserve the Collateral, including, without limitation, any action to
(y) effect any repairs or obtain any insurance called for by the terms of any of
the Loan Documents and to pay all or any part of the premiums therefor and the
costs thereof and (z) pay any rents payable by any Borrower which are more than
30 days past due, or as to which the landlord has given notice of termination,
under any lease. The Administrative Agent shall use its best efforts to give the
applicable Borrower notice of any action taken under this Section 9.3 prior to
the taking of such action or promptly thereafter provided the failure to give
such notice shall not affect the applicable Borrower's obligations in respect
thereof. Each of the Borrowers agrees to pay the Administrative Agent, upon
demand, the principal amount of all funds advanced by the Administrative Agent
under this Section 9.3, together with interest thereon at the rate from time to
time applicable to Base Rate Loans from the date of such advance until the
outstanding principal balance thereof is paid in full. If any Borrower fails to
make payment in respect of any such advance under this Section 9.3 within one
(1) Business Day after the date such Borrower receives written demand therefor
from the Administrative Agent, the Administrative Agent shall promptly notify
each Lender and each Lender agrees that it shall thereupon make available to the
Administrative Agent, in Dollars in
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immediately available funds, the amount equal to such Lender's Pro Rata Share of
such advance. If such funds are not made available to the Administrative Agent
by such Lender within one (1) Business Day after the Administrative Agent's
demand therefor, the Administrative Agent will be entitled to recover any such
amount from such Lender together with interest thereon at the Effective Federal
Funds Rate for each day during the period commencing on the date of such demand
and ending on the date such amount is received. The failure of any Lender to
make available to the Administrative Agent its Pro Rata Share of any such
unreimbursed advance under this Section 9.3 shall neither relieve any other
Lender of its obligation hereunder to make available to the Administrative Agent
such other Lender's Pro Rata Share of such advance on the date such payment is
to be made nor increase the obligation of any other Lender to make such payment
to the Administrative Agent. All outstanding principal of, and interest on,
advances made under this Section 9.3 shall constitute Obligations secured by the
Collateral until paid in full by the Borrower.
9.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Administrative Agent, the
Documentation and Collateral Agent and the Lenders and supersede all prior
agreements and understandings among the Borrowers, the Administrative Agent and
the Lenders relating to the subject matter thereof.
9.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other. The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
9.7 Expenses; Indemnification.
(A) Expenses. The Borrowers shall reimburse the Agents and the
Arrangers for any reasonable costs, internal charges and out-of-pocket expenses
(including attorneys' and paralegals' fees and time charges of attorneys and
paralegals for either Agent or Arranger, which attorneys and paralegals may be
employees of either Agent or Arranger) paid or incurred by either Agent or
Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of the Loan
Documents other than costs and charges incurred prior to a Default customarily
viewed as the overhead expenses of either Agent of customary administration of
the Loan Documents, the Collateral and the Loans. Each of the Borrowers also
agrees to reimburse the Agents, the Lenders and the Issuing Lenders for any
costs, internal charges and out-of-pocket expenses (including attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the Agents,
the Lenders and the Issuing Lenders,
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which attorneys and paralegals may be employees of either Agent, the Lenders or
the Issuing Lenders) paid or incurred by either Agent, any Lender or any Issuing
Lender in connection with the collection of the Obligations and enforcement of
the Loan Documents. In addition to expenses set forth above, each of the
Borrowers agrees to reimburse the Documentation and Collateral Agent, promptly
after the request therefor, for each audit, collateral analysis or other
business analysis performed by or for the benefit of the Lenders in connection
with this Agreement or the other Loan Documents in an amount equal to the
Documentation and Collateral Agent's then customary charges for each person
employed to perform such audit or analysis, plus all costs and expenses
(including without limitation, travel expenses) incurred by the Documentation
and Collateral Agent in the performance of such audit or analysis; provided,
however the Borrowers shall be obligated to reimburse the or Documentation and
Collateral Agent for not more than two (2) such audits in any twelve-month
period with respect to Brink and its Subsidiaries and (1) such audit in any
twelve-month period with respect to each of AAS, Valley and AAS Canada and in an
aggregate amount not to exceed $100,000 if such audits were conducted other than
in connection with a proposed Acquisition and at a time when no Default has
occurred and is continuing; provided, further, it is expressly understood that
the Borrowers shall reimburse the Administrative Agent or Documentation and
Collateral Agent for all such audits (1) conducted in connection with a proposed
Valley Acquisition and related matters or (2) conducted at a time when a Default
has occurred and is continuing. The Administrative Agent or Documentation and
Collateral Agent, as applicable, shall provide the Borrowers with a detailed
statement of all reimbursements requested under this Section 9.7(A).
(B) Indemnity. Each of the Borrowers further agrees to defend, protect,
indemnify, and hold harmless the Agents, the Arrangers, each and all of the
Lenders, each and all of the Issuing Lenders, the Swing Loan Lender and each of
their respective Affiliates, and each of such Agent's, Arrangers', Lender's,
Issuing Lender's or Affiliate's respective officers, directors, employees,
attorneys and agents (including, without limitation, those retained in
connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article IV) (collectively, the "INDEMNITEES") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of:
(i) this Agreement, the other Loan Documents or any of the
Transaction Documents, or any act, event or transaction related or
attendant thereto or to the Valley Acquisition, the making of the
Loans, and the issuance of and participation in Letters of Credit
hereunder, the management of such Loans or Letters of Credit, the use
or intended use of the proceeds of the Loans or Letters of Credit
hereunder, or any of the other transactions contemplated by the
Transaction Documents; or
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(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating to
violation of any Environmental, Health or Safety Requirements of Law
arising from or in connection with the past, present or future
operations of Holdings, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property of
Holdings or its Subsidiaries, the presence of asbestos-containing
materials at any respective property of Holdings or its Subsidiaries or
the Release or threatened Release of any Contaminant into the
environment (collectively, the "INDEMNIFIED MATTERS");
provided, however, the Borrowers shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused solely by or resulting
solely from the willful misconduct or Gross Negligence of such Indemnitee or
breach of contract by such Indemnitee with respect to the Loan Documents, in
each case, as determined by the final non-appealable judgment of a court of
competent jurisdiction. If the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is violative
of any law or public policy, the Borrowers shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable law, to the payment
and satisfaction of all Indemnified Matters incurred by the Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. Each of the
Borrowers further agrees to assert no claim against any of the Indemnitees on
any theory of liability for consequential, special, indirect, exemplary or
punitive damages. No settlement shall be entered into by Holdings or any if its
Subsidiaries with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transaction evidenced by this
Agreement, the other Loan Documents or in connection with the Valley Acquisition
(whether or not the Administrative Agent, any Lender, any Issuing Lender or any
Indemnitee is a party thereto) unless such settlement releases all Indemnitees
from any and all liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements of the
Borrowers under this Section 9.7 shall survive the termination of this
Agreement.
9.8 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
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9.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
9.10 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.11 Nonliability of Lenders. The relationship among the Borrowers and
the Lenders, Issuing Lenders, the Swing Line Lender, the Administrative Agent
and the Documentation and Collateral Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor the Documentation and Collateral
Agent nor any Lender nor any Issuing Lender shall have any fiduciary
responsibilities to the Borrowers. Neither the Administrative Agent, nor the
Documentation and Collateral Agent, nor any Lender, nor any Issuing Lender
undertakes any responsibility to the Borrowers to review or inform the Borrowers
of any matter in connection with any phase of the Borrowers' business or
operations.
9.12 GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON
BEHALF OF ITSELF, THE LENDERS AND THE ISSUING LENDERS, AT NEW YORK, NEW YORK BY
ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE BORROWERS AND
THE ADMINISTRATIVE AGENT, ANY LENDER, ANY ISSUING LENDER OR ANY OTHER HOLDER OF
SECURED OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY,
OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
9.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
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MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. EACH OF
THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION
(A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE
DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE BORROWERS AGREES THAT THE
ADMINISTRATIVE AGENT, THE DOCUMENTATION AND COLLATERAL AGENT, ANY LENDER, ANY
ISSUING LENDER OR ANY HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO
PROCEED AGAINST ANY BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH BORROWER OR (2)
REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF
THE BORROWERS AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT UNDER THIS CLAUSE (B) BY SUCH PERSON TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF SUCH PERSON ALL OF WHICH PERMISSIVE COUNTERCLAIMS
MAY BE BROUGHT ONLY IN THE JURISDICTION SET FORTH IN CLAUSE (A) ABOVE. EACH OF
THE BORROWERS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION
(B).
(C) VENUE. EACH OF THE BORROWERS IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT
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WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE BORROWERS WAIVES THE POSTING OF ANY
BOND OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL
PROCESS OR PROCEEDING TO REALIZE ON THE COLLATERAL (INCLUDING, WITHOUT
LIMITATION, THE REAL PROPERTY COLLATERAL) OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 9.13, WITH ITS COUNSEL.
9.14 No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
ARTICLE X: THE ADMINISTRATIVE AGENT AND THE DOCUMENTATION AND
COLLATERAL AGENT
10.1 Appointment; Nature of Relationship. NBD Bank is appointed by the
Lenders (each reference in this Article X to a Lender being in its capacity
either as a Lender or an Issuing Lender or a Swing Line Lender, or any or all of
the foregoing) and the Canadian Lenders as the Administrative Agent hereunder
and under each other Loan Document, and each of the Lenders and the Canadian
Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender or Canadian Lender with the rights and
duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article X. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Lender or Canadian Lenders by reason of this Agreement and that the
Administrative Agent is merely acting as the representative of the Lenders and
Canadian Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders' and
Canadian Lenders' contractual representative, the Administrative Agent (i) does
not assume any fiduciary duties to any of the Lenders or Canadian Lenders, (ii)
is a "representative"
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of the Lenders and Canadian Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders and Canadian Lenders
agrees to assert no claim against the Administrative Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender waives. NBD Bank is appointed by the Lenders (each reference
in this Article X to a Lender being in its capacity either as a Lender or an
Issuing Lender or a Swing Line Lender or any or all of the foregoing) and the
Canadian Lenders as the Documentation and Collateral Agent hereunder and under
each other Loan Document, and each of the Lenders and Canadian Lenders
irrevocably authorizes the Documentation and Collateral Agent to act as the
contractual representative of such Lender or Canadian Lender with the rights and
duties expressly set forth herein and in the other Loan Documents. The
Documentation and Collateral Agent agrees to act as such contractual
representative upon the express conditions contained in this Article X.
Notwithstanding the use of the defined term "Documentation and Collateral
Agent," it is expressly understood and agreed that the Documentation and
Collateral Agent shall not have any fiduciary responsibilities to any Lender or
Canadian Lender by reason of this Agreement and that the Documentation and
Collateral Agent is merely acting as the representative of the Lenders with only
those duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' and Canadian Lenders' contractual
representative, the Documentation and Collateral Agent (i) does not assume any
fiduciary duties to any of the Lenders or Canadian Lenders, (ii) is a
"representative" of the Lenders and Canadian Lenders within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders and Canadian Lenders agrees to assert no claim against the Documentation
and Collateral Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender waives.
10.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders or Canadian Lenders, or any
obligation to the Lenders or Canadian Lenders to take any action hereunder or
under any of the other Loan Documents except any action specifically provided by
the Loan Documents required to be taken by the Administrative Agent. The
Documentation and Collateral Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Documentation and
Collateral Agent by the terms of each thereof, together with such powers as are
reasonably incidental thereto. The Documentation and Collateral Agent shall have
no implied duties or fiduciary duties to the Lenders or Canadian Lenders, or any
obligation to the Lenders or Canadian Lenders to take any action hereunder or
under any of the other Loan Documents except any action specifically provided by
the Loan Documents required to be taken by the Documentation and Collateral
Agent.
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10.3 General Immunity. Neither the Administrative Agent, nor the
Documentation and Collateral Agent, nor the Co-Administrative Agent, nor the
Syndication Agent, nor any of their respective directors, officers, agents or
employees shall be liable to any of the Borrowers, the Lenders or any Lender or
either Canadian Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
solely from (i) the Gross Negligence or willful misconduct of such Person or
(ii) breach of contract by such Person with respect to the Loan Documents.
10.4 No Responsibility for Loans, Creditworthiness, Collateral,
Recitals, Etc. Neither the Administrative Agent nor the Documentation and
Collateral Agent, nor the Co-Administrative Agent, nor the Syndication Agent,
nor any of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article IV; (iv) the existence or
possible existence of any Default or (v) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. Neither the Administrative Agent nor the Documentation and
Collateral Agent shall be responsible to any Lender or either Canadian Lender
for any recitals, statements, representations or warranties herein or in any of
the other Loan Documents, for the perfection or priority of any of the Liens on
any of the Collateral, or for the execution, effectiveness, genuineness,
validity, legality, enforceability, collectibility, or sufficiency of this
Agreement or any of the other Loan Documents or the transactions contemplated
thereby, or for the financial condition of any guarantor of any or all of the
Obligations, Holdings or any of its Subsidiaries.
10.5 Action on Instructions of Lenders. The Administrative Agent, the
Documentation and Collateral Agent, the Co-Administrative Agent and the
Syndication Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders (except with
respect to actions that require the consent of all of the Lenders as provided in
Section 8.3), and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all holders of
Notes. The Administrative Agent, the Documentation and Collateral Agent, the
Co-Administrative Agent and the Syndication Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
10.6 Employment of Administrative Agents and Counsel. The
Administrative Agent and the Documentation and Collateral Agent may execute any
of their respective duties hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact, and shall not be answerable to
the Lenders or the Canadian Lenders, except as to money or securities
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received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent, the Documentation and Collateral Agent, the
Co-Administrative Agent and the Syndication Agent shall be entitled to advice of
counsel concerning the contractual arrangement among the Administrative Agent,
the Documentation and Collateral Agent and the Lenders or the Co- Administrative
Agent and the Syndication Agent and the Lenders, as the case may be, and all
matters pertaining to such Agent's duties hereunder and under any other Loan
Document.
10.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8 The Agents' Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Administrative Agent, the Documentation and
Collateral Agent, the Co- Administrative Agent and the Syndication Agent ratably
in proportion to their respective Pro Rata Shares (i) for any amounts not
reimbursed by the Borrowers for which the Administrative Agent or the
Co-Administrative Agent is entitled to reimbursement or indemnification by the
Borrowers under the Loan Documents, (ii) for any other expenses incurred by the
Administrative Agent or the Documentation and Collateral Agent or the
Co-Administrative Agent or the Syndication Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents including as a result of a dispute among the
Lenders or between any Lender and the Administrative Agent or the Documentation
and Collateral Agent, and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent or the Documentation and Collateral
Agent in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such other
documents, including as a result of a dispute among the Lenders or between any
Lender and the Administrative Agent or the Documentation and Collateral Agent,
provided that no Lender shall be liable for any of the foregoing to the extent
any of the foregoing is found in a final non-appealable judgment by a court of
competent jurisdiction to have arisen solely from the Gross Negligence or
willful misconduct of the Administrative Agent or the Documentation and
Collateral Agent, as applicable.
10.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
its Tranche A Term Loan Commitment, its Tranche B Term Loan Commitment, Loans
made by it and the Notes issued to it and Letters of Credit issued by it as an
Issuing Lender, the Administrative Agent and the Co-Administrative Agent each
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as through it were not the
Administrative Agent or the Co-Administrative Agent, as applicable, and the term
"Lender" or
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"Lenders" or "Issuing Lender" or "Issuing Lenders", as applicable, shall, unless
the context otherwise indicates, include the Administrative Agent and the
Co-Administrative Agent, each in its individual capacity. The Administrative
Agent and the Co-Administrative Agent may each accept deposits from, lend money
to, enter into Interest Rate Agreements and generally engage in any kind of
trust, debt, equity or other transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with Holdings or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
10.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or the
Co-Administrative Agent or any other Lender and based on the financial
statements prepared by Holdings and the Borrowers and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or the Co-Administrative Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
10.11 Successor Administrative Agent; Successor Documentation and
Collateral Agent. (A) The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers. Upon any such
resignation, the Required Lenders shall have the right to appoint, on behalf of
the Borrowers and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. Notwithstanding anything herein to the contrary,
so long as no Default has occurred and is continuing, each such successor
Administrative Agent shall be subject to approval by the Borrowers, which
approval shall not be unreasonably withheld. Such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$500,000,000. Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article X shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents.
(B) The Documentation and Collateral Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrowers. Upon any
such resignation, the Required Lenders shall have the right to appoint, on
behalf of the Borrowers and the Lenders, a successor Documentation and
Collateral
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Agent. If no successor Documentation and Collateral Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty days after the retiring Documentation and Collateral
Agent's giving notice of resignation, then the retiring Documentation and
Collateral Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Documentation and Collateral Agent. Notwithstanding anything herein to
the contrary, so long as no Default has occurred and is continuing, each such
successor Documentation and Collateral Agent shall be subject to approval by the
Borrowers, which approval shall not be unreasonably withheld. Such successor
Documentation and Collateral Agent shall be a commercial bank having capital and
retained earnings of at least $500,000,000. Upon the acceptance of any
appointment as the Documentation and Collateral Agent hereunder by a successor
Documentation and Collateral Agent, such successor Documentation and Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Documentation and Collateral Agent, and
the retiring Documentation and Collateral Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents. After any
retiring Documentation and Collateral Agent's resignation hereunder as
Documentation and Collateral Agent, the provisions of this Article X shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Documentation and Collateral Agent
hereunder and under the other Loan Documents.
10.12 Collateral Documents. Each Lender authorizes the Documentation
and Collateral Agent to enter into each of the Collateral Documents to which it
is a party and to take all action contemplated by such documents. Each Lender
agrees that no Lender shall have the right individually to seek to realize upon
the security granted by any Collateral Document, it being understood and agreed
that such rights and remedies may be exercised solely by the Documentation and
Collateral Agent for the benefit of the Holders of Secured Obligations upon the
terms of the Collateral Documents.
ARTICLE XI: SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders or Issuing Lenders under applicable law, if any Default occurs and
is continuing, any indebtedness from any Lender or Issuing Lender to any of the
Borrowers (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied toward the
payment of the Obligations owing to such Lender, such Issuing Lender and the
other Obligations, whether or not the Obligations, or any part hereof, shall
then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 3.1, 3.2 or 3.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees,
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promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to the obligations
owing to them. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
11.3 Application of Payments. Subject to the provisions of Section 8.2,
the Administrative Agent shall apply all payments in respect of any Obligations
and all proceeds of Collateral in the following order:
(A) first, to pay interest on and then principal of any
portion of the Loans which the Administrative Agent may have advanced
on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower;
(B) second, to pay interest on and then principal of any
advance made under Section 9.3 for which the Administrative Agent has
not then been paid by the Borrowers or reimbursed by the Lenders;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(D) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Lenders and
Issuing Lender;
(E) fifth, to pay interest due in respect of the Secured
Obligations (other than Rate Hedging Obligations);
(F) sixth, to the ratable payment or prepayment of principal
outstanding on the Secured Obligations (other than Rate Hedging
Obligations);
(G) seventh, to the payment of the Rate Hedging Obligations in
such order as the Administration Agent may determine in its sole
discretion;
(H) eighth, to provide required cash collateral if any
pursuant to Section 2.24; and
(I) ninth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrowers, all principal payments in respect
of Loans shall be applied first, to repay outstanding Base Rate Loans, and then
to repay outstanding Eurocurrency Rate Loans with those Eurocurrency Rate Loans
which have earlier expiring Interest Periods being repaid prior to those which
have later expiring Interest Periods. The order of priority set forth in this
Section 11.3 and the related provisions of this Agreement are set forth solely
to determine the rights and
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priorities of the Administrative Agent, the Lenders, the Issuing Lender and
other Holders of Secured Obligations as among themselves.
11.4 Relations Among Lenders.
(a) Except with respect to the exercise of set-off rights of any Lender
in accordance with Section 11.1, the proceeds of which are applied in accordance
with this Agreement, and each Lender agrees that it will not take any action,
nor institute any actions or proceedings, against any Borrower or any other
obligor hereunder or with respect to any Collateral or Loan Document, without
the prior written consent of the Required Lenders or, as may be provided in this
Agreement or the other Loan Documents, at the direction of the Administrative
Agent.
(b) The Lenders are not partners or co-venturers, and no Lender shall
be liable for the acts or omissions of, or (except as otherwise set forth herein
in case of the Administrative Agent) authorized to act for, any other Lender.
ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) the
Borrowers shall not have the right to assign their rights or obligations under
the Loan Documents and (ii) any assignment by any Lender must be made in
compliance with Section 12.3 hereof. Notwithstanding clause (ii) of this Section
12.1, any Lender may at any time, without the consent of any Borrower or the
Administrative Agent, assign all or any portion of its rights under this
Agreement and its Notes to a Federal Reserve Bank; provided, however, that no
such assignment shall release the transferor Lender from its obligations
hereunder. The Administrative Agent may treat the payee of any Note as the owner
thereof for all purposes hereof unless and until such payee complies with
Section 12.3 hereof in the case of an assignment thereof or, in the case of any
other transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
12.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth in
this Section 12.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Revolving Loan Commitment of such
Lender, any L/C Interest of such Lender or any other interest of such Lender
under the Loan
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Documents on a pro rata basis; provided that the amount of such participation
shall not be for less than $5,000,000. Notice of such participation to Holdings
and the Administrative Agent shall be required prior to any participation
becoming effective with respect to a Participant which is not a Lender or an
Affiliate thereof. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrowers under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan Documents
except that, for purposes of Article III hereof, the Participants shall be
entitled to the same rights as if they were Lenders provided however that no
Participant shall be entitled to receive any greater payment under such Article
III than the Lender would have been entitled to receive with respect to the
rights participated.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Revolving Loan Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Revolving Loan Commitment, or releases all or
substantially all of the Collateral, if any, securing any such Loan.
(C) Benefit of Setoff. The Borrowers agree that each Participant shall
be deemed to have the right of setoff provided in Section 11.1 hereof in respect
to its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 11.1 hereof with respect to the
amount of participating interests sold to each Participant except to the extent
such Participant exercises its right of set off. The Lenders agree to share with
each Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1 hereof, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
(A) Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its Revolving
Loan Commitment, all Loans owing to it, all of its interests as
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Issuing Lender with respect to Letters of Credit, all of its participation
interests in existing Letters of Credit and Swing Line Loans, and its obligation
to participate in additional Letters of Credit and Swing Line Loans hereunder)
in accordance with the provisions of this Section 12.3. Each assignment shall be
of a constant, and not a varying, ratable percentage of all of the rights and
obligations of any assigning Lender under this Agreement. Such assignment shall
be substantially in the form of Exhibit F hereto and shall not be permitted
hereunder unless such assignment is either for all of such Lender's rights and
obligations under the Loan Documents or involves loans and commitments in an
aggregate amount of at least $5,000,000. Notice to the Administrative Agent and
consent of the Administrative Agent (which consent will not be unreasonably
withheld) shall be required prior to an assignment becoming effective with
respect to a Purchaser which is not a Lender or an Affiliate thereof. Each
Lender with a Revolving Loan Commitment shall at all times have a Tranche A Pro
Rata Share of the Tranche A Term Loans equal to its pro rata share of the
aggregate Revolving Loan Commitments.
(B) Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form attached as Appendix
I to Exhibit F hereto (a "NOTICE OF ASSIGNMENT"), together with any consent
required by Section 12.3(A) hereof, and (ii) except in the case of an assignment
from a Lender to an Affiliate thereof or to a fund managed by the same
investment manager, payment of a $3,500 fee to the Administrative Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. The Notice of Assignment
shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment, Loans and L/C
Obligations under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser, if not already a Lender,
shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no consent or action by any of the Borrowers or the
Lenders and no further consent or action by the Administrative Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Revolving Loan Commitment, Loans and Letter of Credit participations
assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3(B), the transferor Lender, the
Administrative Agent and the Borrowers shall make appropriate arrangements so
that replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Revolving Loan Commitment and their Term
Loans, as adjusted pursuant to such assignment.
(C) The Register. The Administrative Agent shall maintain at its
address referred to in Section 13.1 a copy of each assignment delivered to and
accepted by it pursuant to this Section 12.3 and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of and principal amount of the Loans owing to, each
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Lender from time to time and whether such Lender is an original Lender or the
assignee of another Lender pursuant to an assignment under this Section 12.3.
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and Holdings and each of its Subsidiaries, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
12.4 Confidentiality. Subject to Section 12.5, the Administrative Agent
and the Lenders shall hold all nonpublic information obtained pursuant to the
requirements of this Agreement and identified as such by Holdings in accordance
with such Person's customary procedures for handling confidential information of
this nature and in accordance with safe and sound banking practices and in any
event may make disclosure reasonably required by a prospective Transferee in
connection with the contemplated participation or assignment or as required or
requested by any Governmental Authority or representative thereof or pursuant to
legal process and shall require any such Transferee or prospective Transferee to
agree (and require any of its Transferees to agree) to comply with this Section
12.4. In no event shall the Administrative Agent or any Lender be obligated or
required to return any materials furnished by the Borrowers; provided, however,
each prospective Transferee shall be required to agree that if it does not
become a participant or assignee it shall return all materials furnished to it
by or on behalf of the Borrowers in connection with this Agreement.
12.5 Dissemination of Information. Each of the Borrowers authorizes
each Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the Holdings and its Subsidiaries and the
Collateral; provided that prior to any such disclosure, such prospective
Transferee shall agree to preserve in accordance with Section 12.4 the
confidentiality of any confidential information described therein.
ARTICLE XIII: NOTICES
13.1 Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Documents shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes); or, if by
courier, one (1) Business Day after deposit with a reputable overnight carrier
service; with all charges paid.
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13.2 Change of Address. Any of the Borrowers, the Administrative Agent
and any Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
ARTICLE XIV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Administrative Agent and the Lenders and each party as notified the
Administrative Agent by telex or telephone, that it has taken such action.
[Remainder of This Page Intentionally Blank]
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IN WITNESS WHEREOF, the Borrowers, the Lenders, the Administrative
Agent and the Documentation and Collateral Agent, the Co-Administrative Agent
and the Syndication Agent have executed this Agreement as of the date first
above written.
AAS HOLDINGS, LLC
as a Borrower
By:___________________________
Name:
Title:
Address:
Sterling Town Center
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
ADVANCED ACCESSORY SYSTEMS, LLC
as a Borrower
By: AAS HOLDINGS, LLC
Its Manager
By:___________________________
Name:
Title:
Address:
Sterling Town Center
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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VALLEY INDUSTRIES, LLC
as a Borrower
By: AAS HOLDINGS, LLC
Its Manager
By:___________________________
Name:
Title:
Address:
Sterling Town Center
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
BRINK INTERNATIONAL
as a Borrower
By:___________________________
Name:
Title:
Address:
___________________
___________________
___________________
___________________
Attention: _________________
Telephone No.: _________________
Facsimile No.: _________________
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BRINK BV
as a Borrower
By:___________________________
Name:
Title:
Address:
________________________
________________________
________________________
________________________
Attention: _________________
Telephone No.: _________________
Facsimile No.: _________________
NBD BANK
as the Administrative Agent, the Documentation
and Collateral Agent, an Issuing Lender, a
Swing Line Lender and as a Lender
By:___________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
_______________________________
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-3
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK
as the Co-Administrative Agent, the Syndication
Agent, an Issuing Lender, a Swing Line Lender and
as a Lender
By:___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
______________________________
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
CHASE MANHATTAN BANK DELAWARE
as an Issuing Lender
By:___________________________
Name:
Title:
Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
S-4
149
FIRST UNION NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
_______________________________
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA
as a Lender
By:____________________________
Name:
Title:
Address:
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________
Attention: ▇▇▇▇▇▇ ▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By:____________________________
Title:
By:____________________________
Title:
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Services Department
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Rabobank Nederland
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Wire Transfer Instructions:
Bank of New York
ABA No. ▇▇▇▇▇▇▇▇▇
A/C Rabobank New York
A/C/ No. ▇▇▇ ▇▇▇▇▇▇▇
Re: AAS Holdings
▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
as a Lender
By:____________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
________________________________
Attention: __________________
Telephone No.: (616) 776-____
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
MICHIGAN NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:
Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
_______________________________
Attention: __________________
Telephone No.: (810) 473-____
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇▇▇)
as a Lender
By:____________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
________________________________
Attention: __________________
Telephone No.: (810) 664-____
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-8
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
as a Holder of Secured Obligations
By:____________________________
Name:
Title:
Address:
________________________
________________________
_________________________________
Attention: __________________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
as a Holder of Secured Obligations
By:____________________________
Name:
Title:
Address:
___________________
___________________
___________________________
Attention: __________________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
S-9
154
COMERICA BANK,
as Lender
By:____________________________
Name:
Title:
Address:
_________________________
_________________________
_______________________________
Attention: __________________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
S-10
155
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
as a Lender
By:____________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Attention: __________________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
S-11
156
DEBT STRATEGIES FUND, INC.
as a Lender
By:____________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: __________________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
S-12
157
SENIOR HIGH INCOME PORTFOLIO, INC.
as a Lender
By:____________________________
Name:
Title:
Address:
______________________
______________________
______________________________
Attention: __________________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
S-13
158
DEEPROCK & COMPANY
as a Lender
By:____________________________
Name:
Title:
Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: __________________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
S-14
159
AMENDMENT NO. 1
Dated as of September 5, 1997
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 5, 1997
and
SECURITY AGREEMENTS
Dated as of October 5, 1996
THIS AMENDMENT NO. 1 ("Amendment") is made as of September 5,
1997 by and among AAS Holdings, LLC, Advanced Accessory Systems, LLC, Valley
Industries, LLC, Brink International BV and Brink BV (the "Borrowers"), the
financial institutions listed on the signature pages hereof (the "Lenders") and
NBD Bank, as Administrative Agent and Documentation and Collateral Agent, and
The Chase Manhattan Bank, as Co-Administrative Agent and Syndication Agent (the
"Agents"), under that certain Second Amended and Restated Credit Agreement dated
as of August 5, 1997 by and among the Borrowers, the Lenders and the Agents (the
"Credit Agreement"). Defined terms used herein and not otherwise defined herein
shall have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrowers, the Lenders and the Agents have agreed
to amend the Credit Agreement and certain of the Security Agreements on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lenders and the Agents have agreed to the following amendments to
the Credit Agreement.
1. Amendments to Credit Agreement and Security Agreements.
Effective as of the Effective Date (as defined below) and subject to the
satisfaction of the condition precedent set forth in Section 3 below:
1.1 Schedule 5.8 to the Credit Agreement is amended by
deleting the existing Schedule 5.8 in its entirety and substituting therefor
Amended Schedule 5.8 attached hereto.
1.2 Section 5(a) of the Security Agreement executed by
Holdings in favor of the Documentation and Collateral Agent is amended by
deleting the first sentence thereof in its entirety and substituting therefor
the following:
The correct name of Grantor is "Advanced Accessory Systems,
LLC".
1.3 Section 5(a) of the Security Agreement executed by AAS in
favor of the Documentation and Collateral Agent is amended by deleting the first
sentence thereof in its entirety and substituting therefor the following:
The correct name of Grantor is "SportRack, LLC".
2. Consent. The Lenders hereby consent to the amendment by
Holdings and AAS of their respective organizational documents to effect changes
in their names to "Advanced Accessory Systems, LLC" and "SportRack, LLC",
respectively.
160
3. Condition of Effectiveness. The effectiveness of this
Amendment is subject to the condition precedent that the Administrative Agent
shall have received counterparts of this Amendment duly executed by the
Borrowers, the Required Lenders and the Agents. Upon the satisfaction of the
foregoing condition precedent, this Amendment shall become effective (i) with
respect to the consent set forth in Section 2 above, as of the date hereof, and
(ii) with respect to the amendments set forth in Section 1 above, as of the date
on which appropriate amendments effecting the name changes are filed with the
Secretary of State of Delaware and copies thereof are delivered to the
Administrative Agent (the "Effective Date").
4. Representations and Warranties of the Borrowers. Each
Borrower hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement as amended hereby
constitute legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms.
(b) As of the Effective Date, (i) there exists no Default or
Unmatured Default and (ii) the representations and warranties contained in
Article V of the Credit Agreement, as amended hereby, are true and correct in
all material respects, except for representations and warranties made with
reference to a specific date which representations and warranties are true and
correct in all material respects as of such date.
5. Reference to and Effect on the Credit Agreement and
Security Agreements.
(a) Upon the effectiveness of Section 1 hereof, each reference
in any Loan Document to such Loan Document or any other Loan Document shall mean
and be a reference to the applicable Loan Document as amended hereby.
(b) Except as specifically amended above, the Credit Agreement
and all other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agents or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
-2-
161
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
AAS HOLDINGS, LLC
as a Borrower
By:____________________________
Name:
Title:
ADVANCED ACCESSORY SYSTEMS, LLC
as a Borrower
By: AAS HOLDINGS, LLC
Its Manager
By:____________________________
Name:
Title:
VALLEY INDUSTRIES, LLC
as a Borrower
By: AAS HOLDINGS, INC.
Its Manager
By:____________________________
Name:
Title:
BRINK INTERNATIONAL BV
as a Borrower
By:____________________________
Name:
Title:
BRINK BV
as a Borrower
By:____________________________
Name:
Title:
-3-
162
NBD BANK
as the Administrative Agent and
the Documentation and Collateral
Agent, and as a Lender
By:____________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as the Co-Administrative Agent
and the Syndication Agent, and as
a Lender
By:____________________________
Name:
Title:
FIRST UNION NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:_________________________
THE BANK OF NOVA SCOTIA
as a Lender
By:____________________________
Name:
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
as a Lender
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
-4-
163
LASALLE NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:
MICHIGAN NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:
NATIONAL CITY BANK (CLEVELAND)
as a Lender
By:____________________________
Name:
Title:
COMERICA BANK
as a Lender
By:____________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICA CAPITAL
PRIME RATE INCOME TRUST
as a Lender
By:____________________________
Name:
Title:
DEBT STRATEGIES FUND, INC.
as a Lender
By:____________________________
Name:
Title:
-5-
164
SENIOR HIGH INCOME PORTFOLIO, INC.
as a Lender
By:____________________________
Name:
Title:
DEEPROCK & CO.
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By:____________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:____________________________
Name:
Title:
-6-
165
EXECUTION COPY
AMENDMENT NO. 2
Dated as of September 24, 1997
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 5, 1997
THIS AMENDMENT NO. 2 ("Amendment") is made as of September 24,
1997 by and among Advanced Accessory Systems, LLC (formerly known as AAS
Holdings, LLC), Sportrack, LLC (formerly known as Advanced Accessory Systems,
LLC), Valley Industries, LLC, Brink International BV and Brink BV (the
"Borrowers"), the financial institutions listed on the signature pages hereof
(the "Lenders") and NBD Bank, as Administrative Agent and Documentation and
Collateral Agent, and The Chase Manhattan Bank, as Co-Administrative Agent and
Syndication Agent (the "Agents"), under that certain Second Amended and Restated
Credit Agreement dated as of August 5, 1997 by and among the Borrowers, the
Lenders and the Agents (as amended, the "Credit Agreement"). Defined terms used
herein and not otherwise defined herein shall have the respective meanings given
to them in the Credit Agreement.
WHEREAS, the Borrowers, the Lenders and the Agents have agreed
to amend the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lenders and the Agents have agreed to the following amendments to
the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of September
24, 1997 and subject to the satisfaction of the conditions precedent set forth
in Section 2 below, the Credit Agreement is hereby amended as follows:
1.1 Article I of the Credit Agreement is hereby amended to add
alphabetically the following defined terms:
"ACQUISITION FACILITY COMMITMENT" means, for each Lender, the
obligation of such Lender to make Acquisition Facility Loans not exceeding the
amount set forth on Exhibit B to this Agreement opposite its name thereon under
the heading "Acquisition Facility Commitment" or in the Assignment Agreement by
which it became a Lender, as such amount may be modified from time to time
pursuant to the terms of this Agreement or to give effect to any applicable
assignment and acceptance.
"ACQUISITION FACILITY LOAN" is defined in Section 2.2A hereof.
"ACQUISITION FACILITY NOTE" means a note in substantially the
form of Exhibit C-1 hereto duly executed by the applicable Borrower and payable
to the order of a Lender in the amount of its Acquisition Facility Commitment,
including any amendment, restatement, modification, renewal or replacement of
such Acquisition Facility Note.
166
"AGGREGATE ACQUISITION FACILITY COMMITMENT" means the
aggregate of the Acquisition Facility Commitments of all the Lenders, as reduced
from time to time pursuant to the terms hereof. The initial Aggregate
Acquisition Facility Commitment is Twenty Two Million Dollars ($22,000,000).
1.2 Article I of the Credit Agreement is hereby amended to add
the following phrase immediately after the phrase "Tranche B Term Loans" in the
definition of "Applicable Base Rate Margin":
"or Acquisition Facility Loans".
1.3 Article I of the Credit Agreement is hereby amended to add
the following phrase immediately after the phrase "Tranche B Term Loans" in the
definition of "Applicable Eurocurrency Margins":
"or Acquisition Facility Loans".
1.4 Article I of the Credit Agreement is hereby amended to add
the following phrase immediately after the phrase "Tranche A Term Loan
Commitment" in the definition of "Commitment":
", Acquisition Facility Commitment,".
1.4(A) Article I of the Credit Agreement is hereby amended to
add the following phrase immediately after the phrase "principal amount of" in
the definition of "High Yield Note Agreement":
"not less than".
1.5 Article I of the Credit Agreement is hereby amended to add
the following phrase immediately after the phrase "Term Loans" in the definition
of "Loans":
", Acquisition Facility Loans"
and to add the following immediately after the reference to "Section 2.2" in
such definition"
"or Section 2.2A".
1.6 Article I of the Credit Agreement is hereby amended to add
the following phrase immediately after the phrase "Revolving Loan Commitment" in
(ii)(A) of the definition of "Pro Rata Share":
"and Acquisition Facility Commitment (or, after December 31, 1999, the
outstanding principal balance of such Lender's Acquisition Facility
Loans)"
and to add the following immediately after the phrase "Aggregate Revolving Loan
Commitment" in (ii)(B) of such definition:
"and the Aggregate Acquisition Facility Commitment (or after December 31, 1999,
the outstanding principal balance of such Lender's Acquisition Facility Loans)"
"and to add the following immediately after the phrase "such Lender's Term
Loans" in (x) of such definition: Acquisition Facility Loans"
-2-
167
and to add the following immediately after the phrase "all Term Loans" in (y) of
such definition:
", Acquisition Facility Loans".
1.7 Article I of the Credit Agreement is hereby amended to add
the following phrase immediately after the phrase "Pro Rata Share of any
Revolving Loan" in the definition of "Required Lenders":
"or Acquisition Facility Loan"
and to add the following phrase immediately after the phrase "Pro Rata Shares of
such Revolving Loans" in such definition:
"or Acquisition Facility Loans".
1.8 Article I of the Credit Agreement is hereby amended to add
the following phrase immediately after the phrase "Tranche B Term Loans" in the
definition of "Term Loans":
"and, after December 31, 1999, the Acquisition Facility Loans".
1.9 Article I of the Credit Agreement is hereby amended to add
the following definition of "Term Notes":
"Term Notes means, collectively, the Tranche A Term Notes, the Tranche
B Term Notes, and, after December 31, 1999, the Acquisition Facility Notes".
1.10 Article I of the Credit Agreement is hereby amended to
delete the definition of "Tranche A Pro Rata Share" now contained therein and to
substitute the following therefor:
"'TRANCHE A PRO RATA SHARE' shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the
numerator of which shall be the then aggregate amount of such Lender's
Revolving Credit Commitment (or, if such Commitment has been
terminated, the outstanding principal balance of such Lender's
Revolving Loans) and Acquisition Facility Commitment (or, after
December 31, 1999 or if such Commitment has been terminated, the
outstanding principal balance of such Lender's Acquisition Facility
Loans) plus the outstanding principal balance of such Lender's Tranche
A Term Loans and the denominator of which shall be the then aggregate
amount of all Revolving Credit Commitments (or, if such Commitments
have been terminated, the outstanding principal balance of all
Revolving Loans), Acquisition Facility Commitments (or, after December
31, 1999 or if such Commitments have been terminated, the outstanding
principal balance of all Acquisition Facility Loans) and the
outstanding principal balance of the Tranche A Term Loans."
-3-
168
1.11 Article II of the Credit Agreement is hereby amended by
adding the following new Section 2.2A immediately after Section 2.2 and before
Section 2.3:
"2.2A Acquisition Facility. Upon the satisfaction of the
conditions precedent set forth in Sections 4.1 and 4.2, from and
including the date of this Agreement and prior to December 31, 1999,
each Lender severally and not jointly agrees, on the terms and
conditions set forth in this Agreement, to make revolving loans, in
Dollars only, to the applicable Borrower from time to time in an amount
not to exceed such Lender's Acquisition Facility Commitment (each
individually, an "'ACQUISITION FACILITY LOAN" and collectively, the
"ACQUISITION FACILITY LOANS"). Each Advance under this Section 2.2A
shall consist of Acquisition Facility Loans made by each Lender ratably
in proportion to such Lender's respective Tranche A Pro Rata Share.
Subject to the terms of this Agreement, the Borrowers may borrow, repay
and reborrow Acquisition Facility Loans at any time prior to December
31, 1999. On December 31, 1999, the Borrower's option to borrow and
reborrow Acquisition Facility Loans shall terminate, the Aggregate
Acquisition Facility Commitment shall be reduced to zero and the
outstanding principal balance of the Acquisition Facility Loans shall
be repaid in sixteen (16) equal consecutive quarterly installments of
principal, payable on the last Business Day of each fiscal quarter of
the Borrower, commencing on December 31, 1999 and continuing thereafter
until the Tranche A Term Loan Termination Date, and the Acquisition
Facility Loans shall be permanently reduced by the amount of each
installment on the date payment thereof is made hereunder.
Notwithstanding the foregoing, the final installment shall be in the
amount of the then outstanding principal balance of the Acquisition
Facility Loans. In addition, the then outstanding principal balance of
all Acquisition Facility Loans, if any, shall be due and payable on the
Tranche A Term Loan Termination Date."
1.12 Section 2.5(B)(i)(d)(I) of the Credit Agreement is hereby
amended to insert the following phrase immediately after the phrase "Tranche B
Term Loans":
"and, after December 31, 1999, the Acquisition Facility Loans".
1.13 Section 2.5(B)(i)(e) of the Credit Agreement is hereby
amended to insert the following phrase immediately after the reference to
"Tranche A Term Loans":
"and, after December 31, 1999, the Acquisition Facility Loans".
1.14 Section 2.6 of the Credit Agreement is hereby amended to
insert the following phrase after the first reference to "Aggregate Revolving
Loan Commitment":
"or the Aggregate Acquisition Facility Commitment",
and to insert at the end of the first sentence the following:
"and the amount of the Aggregate Acquisition Facility Commitment may
not be reduced below the aggregate principal amount of the outstanding
Acquisition Facility Loans".
-4-
169
1.15 Section 2.7 of the Credit Agreement is hereby amended to
insert the following phrase immediately after the phrase "Revolving Loan or
Loans":
"or Acquisition Facility Loan or Loans".
1.16 Section 2.8(b)(i) of the Credit Agreement shall be
amended to insert immediately after the reference to "Tranche A Term Loans and
Revolving Loans" in the pricing grid a reference to the following:
"and Acquisition Facility Loans".
1.17 Section 2.9 of the Credit Agreement is hereby amended to
insert the following phrase immediately after the phrase "Aggregate Revolving
Loan Commitment":
"or the unused Aggregate Acquisition Facility Commitment".
1.18 Section 2.15(C) of the Credit Agreement is hereby amended
to add the following phrase immediately after the phrase "Aggregate Revolving
Loan Commitment" in (i)(A):
"plus the Aggregate Acquisition Facility Commitment (prior to December
31, 1999)"
and to insert immediately after the phrase "Revolving Credit Obligations" in (i)
(B) the following:
"plus, prior to December 31, 1999, the outstanding principal balance of
the Acquisition Facility Loans".
1.19 Section 2.22 of the Credit Agreement is hereby amended to
add the following immediately after the end thereof:
"Notwithstanding the foregoing, Comerica Bank may issue commercial
Letters of Credit up to an aggregate amount at any one time outstanding
of $75,000 for its own account with respect to which the participation
provisions of this Section 2.22 shall not apply."
1.20 Section 2.25 of the Credit Agreement is hereby amended to
add the following immediately after the end thereof:
-5-
170
"Notwithstanding the foregoing, the Letter of Credit Fee prescribed in
this Section 2.25 shall not apply to the commercial letters of credit
issued by Comerica Bank for its own account as described in Section
2.22 and Comerica Bank and the Borrowers shall negotiate separate fee
arrangements with respect to such letters of credit and such fees shall
be for the account of Comerica Bank."
1.21 Section 6.3(D) of the Credit Agreement is hereby amended
to add the following new subsection (xii) ad the end thereof:
"(xii) Investments made in Permitted Acquisitions".
1.22 Section 6.3(G) of the Credit Agreement is here by amended
to delete Section 6.3(G)(2) now contained therein and to substitute the
following therefor:
"prior to each such acquisition, Holdings shall deliver to the
Administrative Agent a certificate from one of Holdings' Authorized
Officers demonstrating to the satisfaction of the Administrative Agent
that after giving effect to the transaction or transactions on a pro
forma basis using pro forma historical audited and reviewed unaudited
financial statements (or other financial statements reasonably
acceptable to the Administrative Agent) obtained from the seller on an
unadjusted basis (other than one-time adjustments agreed to by the
Administrative Agent, such agreement not to be unreasonable withheld)
as if the acquisition had occurred in the first day of the twelve-month
period ending on the last day of Holdings' most recently completed
fiscal quarter, Holdings and its Subsidiaries (a) would have been in
compliance with all provisions of Section 6.4 at all times during such
twelve-month period and would have maintained a Leverage Ratio at all
times prior to January 1, 1998 of less than 5.50 to 1.0; and (b) will
be in compliance, based on projections deemed reasonable by the
Administrative Agent, with all provisions of Section 6.4 through the
first anniversary of such acquisition;"
and is further amended to delete the language now contained in Section
6.3(G)(5)(B) and substitute the following therefor:
"with respect to acquisitions other than the acquisition of Ellebi,
S.A., $5,000,000 if the sources for such purchases are other than as
set forth in clause (A) above, unless such acquisition is approved by
the Required Lenders"
and is further amended to add a new subsection (6) immediately following
subsection (5):
"(6) if the acquisition is a stock acquisition, the acquisition shall
result in a transfer of 100% of the common stock of the company being
acquired".
1.23 Section 8.2(vi) of the Credit Agreement is hereby amended
to insert immediately after each reference to "Revolving Loan Commitment" the
following:
"or its Acquisition Facility Commitment".
1.24 Section 8.3(iv) of the Credit Agreement is hereby amended
to insert immediately after the phrase "Revolving Loan Commitment" the
following:
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"or Acquisition Facility Commitment".
1.25 Section 10.9 of the Credit Agreement is hereby amended to
insert immediately after the phrase "Revolving Loan Commitment" the following:
"its Acquisition Facility Commitment".
1.26 Section 12.2 of the Credit Agreement is hereby amended to
insert immediately after each reference to the phrase "Revolving Loan
Commitment" the following:
"or any Acquisition Facility Commitment".
1.27 Section 12.3 of the Credit Agreement is hereby amended to
insert immediately after each reference to the phrase "Revolving Loan
Commitment" the following:
"or Acquisition Facility Commitment",
and to insert immediately after the phrase "Aggregate Revolving Loan Commitment"
the following:
", the Aggregate Acquisition Facility Commitment".
2. Conditions of Effectiveness. The effectiveness of this
Amendment is subject to the conditions precedent that (a) the Administrative
Agent shall have received counterparts of this Amendment duly executed by the
Borrowers, the Required Lenders and the Agents, (b) the Borrowers shall have
raised $100,000,000 through an offering of subordinated notes containing terms
substantially identical to those set forth in the Preliminary Offering
Memorandum dated September 8, 1997, and (c) the Borrowers shall have paid any
fees due and payable pursuant to any applicable fee letter. Upon the
satisfaction of the foregoing conditions precedent, this Amendment shall become
effective with respect to the amendments set forth in Section 1 above.
3. Representations and Warranties of the Borrowers. Each
Borrower hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement as amended hereby
constitute legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms.
(b) As of September 24, 1997, (i) there exists no Default or
Unmatured Default and (ii) the representations and warranties contained in
Article V of the Credit Agreement, as amended hereby, are true and correct in
all material respects, except for representations and warranties made with
reference to a specific date which representations and warranties are true and
correct in all material respects as of such date.
4. Reference to and Effect on the Credit Agreement and
Security Agreements.
(a) Upon the effectiveness of Section 1 hereof, each reference
in any Loan Document to such Loan Document or any other Loan Document shall mean
and be a reference to the applicable Loan Document as amended hereby.
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172
(b) Except as specifically amended above, the Credit Agreement
and all other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agents or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
6. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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173
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
ADVANCED ACCESSORY SYSTEMS, LLC
as a Borrower
By:____________________________
Name:
Title:
SPORTRACK, LLC
as a Borrower
By: ADVANCED ACCESSORY SYSTEMS, LLC
Its Manager
By:____________________________
Name:
Title:
VALLEY INDUSTRIES, LLC
as a Borrower
By: ADVANCED ACCESSORY SYSTEMS, LLC
Its Manager
By:____________________________
Name:
Title:
BRINK INTERNATIONAL BV
as a Borrower
By:____________________________
Name:
Title:
BRINK BV
as a Borrower
By:____________________________
Name:
Title:
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NBD BANK
as the Administrative Agent and the
Documentation and Collateral Agent,
and as a Lender
By:____________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as the Co-Administrative Agent and
the Syndication Agent, and as a
Lender
By:____________________________
Name:
Title:
FIRST UNION NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:_________________________
THE BANK OF NOVA SCOTIA
as a Lender
By:____________________________
Name:
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
as a Lender
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
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175
LASALLE NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:
MICHIGAN NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:
NATIONAL CITY BANK (CLEVELAND)
as a Lender
By:____________________________
Name:
Title:
COMERICA BANK
as a Lender
By:____________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICA CAPITAL
PRIME RATE INCOME TRUST
as a Lender
By:____________________________
Name:
Title:
DEBT STRATEGIES FUND, INC.
as a Lender
By:____________________________
Name:
Title:
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SENIOR HIGH INCOME PORTFOLIO, INC.
as a Lender
By:____________________________
Name:
Title:
DEEPROCK & CO.
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By:____________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEBT STRATEGIES
PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By:____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By:____________________________
Name:
Title:
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EXECUTION COPY
AMENDMENT NO. 3
Dated as of December 29, 1997
to
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 5, 1997
THIS AMENDMENT NO. 3 ("Amendment") is made as of December 29,
1997 by and among Advanced Accessory Systems, LLC (formerly known as AAS
Holdings, LLC), SportRack, LLC (formerly known as Advanced Accessory Systems,
LLC), Valley Industries, LLC, Brink International BV and Brink BV (the
"Borrowers"), the financial institutions listed on the signature pages hereof
(the "Lenders") and NBD Bank, as Administrative Agent and Documentation and
Collateral Agent, and The Chase Manhattan Bank, as Co-Administrative Agent and
Syndication Agent (the "Agents"), under that certain Second Amended and Restated
Credit Agreement dated as of August 5, 1997 by and among the Borrowers, the
Lenders and the Agents (as amended, the "Credit Agreement"). Defined terms used
herein and not otherwise defined herein shall have the respective meanings given
to them in the Credit Agreement.
WHEREAS, the Borrowers, the Lenders and the Agents have agreed
to amend the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lenders and the Agents have agreed to the following amendments to
the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of December
29, 1997 and subject to the satisfaction of the conditions precedent set forth
in Section 2 below, the Credit Agreement is hereby amended as follows:
1.1 Article I of the Credit Agreement is hereby amended to
delete the definition of "AAS" now contained therein and to substitute therefor
the following definition:
"'AAS' means SportRack, LLC, a Delaware limited liability
company (formerly known as Advanced Accessory Systems, LLC), and its
successors and assigns, including a debtor-in-possession on behalf of
AAS."
1.2 Article I of the Credit Agreement is hereby amended to
delete the definition of "Holdings" now contained therein and to substitute
therefor the following:
"'HOLDINGS' means Advanced Accessory Systems, LLC, a Delaware
limited liability company (formerly known as AAS Holdings, LLC), and
its successors and assigns, including a debtor-in-possession on behalf
of Holdings."
1.3 Section 6.3(A)(f) of the Credit Agreement is hereby
amended to add a new subsection (5) at the end thereof:
"and (5) Brink BV or Brink International to Brink Italia S.r.l. in an
amount not to exceed $22,000,000 or the Equivalent Amount thereof,
provided that if such
178
Indebtedness is evidenced by a note, such note is pledged to the
Documentation and Collateral Agent to secure payment of Advances made
to non-U.S. Subsidiaries."
1.4 Section 6.3(D) of the Credit Agreement is hereby amended
to add a new subsection (xiii) at the end thereof:
(xiii) Investments made through a purchase of equity or as a
contribution to capital by Brink BV or Brink International in Brink
Italia S.r.l. provided that any such Investment shall not exceed
$10,000,000 or the Equivalent Amount thereof."
1.5 Section 6.4(A) of the Credit Agreement is hereby amended
to add the following as a new last sentence at the end of the definition of
"Capital Expenditures":
"No portion of the purchase of assets by Brink Italia S.r.l. from
Ellebi S.p.A. shall be deemed to be a Capital Expenditure."
1.6 Schedule 5.8 of the Credit Agreement is hereby amended to
add immediately at the end thereof the following:
"Brink Italia S.r.l., an Italian corporation."
2. Conditions of Effectiveness. The effectiveness of this
Amendment is subject to the conditions precedent that the Administrative Agent
shall have received counterparts of this Amendment duly executed by the
Borrowers, the Required Lenders and the Agents. Upon the satisfaction of the
foregoing conditions precedent, this Amendment shall become effective with
respect to the amendments set forth in Section 1 above.
3. Representations and Warranties of the Borrowers. Each
Borrower hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement as amended hereby
constitute legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms.
(b) As of December 29, 1997, (i) there exists no Default or
Unmatured Default and (ii) the representations and warranties contained in
Article V of the Credit Agreement, as amended hereby, are true and correct in
all material respects, except for representations and warranties made with
reference to a specific date which representations and warranties are true and
correct in all material respects as of such date.
4. Reference to and Effect on the Credit Agreement and
Security Agreements.
(a) Upon the effectiveness of Section 1 hereof, each reference
in any Loan Document to such Loan Document or any other Loan Document shall mean
and be a reference to the applicable Loan Document as amended hereby.
(b) Except as specifically amended above, the Credit Agreement
and all other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
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179
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agents or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
6. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
ADVANCED ACCESSORY SYSTEMS, LLC
as a Borrower
By:____________________________
Name:
Title:
SPORTRACK, LLC
as a Borrower
By: ADVANCED ACCESSORY SYSTEMS, LLC
Its Manager
By:____________________________
Name:
Title:
VALLEY INDUSTRIES, LLC
as a Borrower
By: ADVANCED ACCESSORY SYSTEMS, LLC
Its Manager
By:____________________________
Name:
Title:
BRINK INTERNATIONAL BV
as a Borrower
By:____________________________
Name:
Title:
BRINK BV
as a Borrower
By:____________________________
Name:
Title:
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181
NBD BANK
as the Administrative Agent and
the Documentation and Collateral
Agent, and as a Lender
By:____________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as the Co-Administrative Agent and
the Syndication Agent, and as a
Lender
By:____________________________
Name:
Title:
FIRST UNION NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:_________________________
THE BANK OF NOVA SCOTIA
as a Lender
By:____________________________
Name:
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
as a Lender
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
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LASALLE NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:
MICHIGAN NATIONAL BANK
as a Lender
By:____________________________
Name:
Title:
NATIONAL CITY BANK (CLEVELAND)
as a Lender
By:____________________________
Name:
Title:
COMERICA BANK
as a Lender
By:____________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICA CAPITAL
PRIME RATE INCOME TRUST
as a Lender
By:____________________________
Name:
Title:
DEBT STRATEGIES FUND, INC.
as a Lender
By:____________________________
Name:
Title:
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SENIOR HIGH INCOME PORTFOLIO, INC.
as a Lender
By:____________________________
Name:
Title:
DEEPROCK & CO.
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By:____________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEBT STRATEGIES
PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management,
L.P., as Investment Advisor
By:____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management,
L.P., as Investment Advisor
By:____________________________
Name:
Title:
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